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Australian Parliamentary Joint Committee on Human Rights |
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Purpose
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This instrument amends the Biosecurity (Human Biosecurity Emergency) (Human
Coronavirus with Pandemic Potential) (Emergency Requirements
for Remote
Communities) Determination 2020 to prevent or control the entry or spread of
COVID-19 in Queensland, Western Australia,
South Australia and the Northern
Territory. The instrument commenced on 24 April 2020
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Portfolio
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Health
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Authorising legislation
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Disallowance
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This instrument is exempt from disallowance (see subsection 477(2) of the
Biosecurity Act 2015)
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Rights
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Life; health; freedom of movement; equality and non-discrimination
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Status
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Concluded examination
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The committee requested a response from the minister in relation to the instrument in Report 6 of 2020.[2]
1.250 This instrument amends the Biosecurity (Human Biosecurity Emergency) (Human Coronavirus with Pandemic Potential) (Emergency Requirements for Remote Communities) Determination 2020,[3] which establishes that persons cannot enter designated areas except in specified circumstances, to prevent or control the entry or spread of COVID-19 in Queensland, Western Australia, South Australia and the Northern Territory.
1.251 The key changes are: to require a person entering a designated area to have not been in a foreign country, rather than outside Australian territory, in the 14 days immediately prior to entry; to add a new designated area in Queensland; to remove two designated areas in South Australia; and to exclude certain areas in the Northern Territory as designated areas.
1.252 This instrument is made under section 477(1) of the Biosecurity Act 2015, which provides that during a human biosecurity emergency period, the Health Minister may determine emergency requirements, or give directions, that they are satisfied are necessary to prevent or control the entry, emergence, establishment or spread of the disease in Australian territory. A person who fails to comply with a requirement or direction may commit a criminal offence (imprisonment for maximum 5 years, or 300 penalty units).[4]
1.253 As the measure is intended to prevent and manage the spread of COVID-19, which has the ability to cause high levels of morbidity and mortality, it would appear that the measure may promote the rights to life and health.[5] However, by restricting entry to these locations, and adding a new location as a designated area, the instrument may also limit the right to freedom of movement. Furthermore, the restrictions of entry would appear to apply to anyone who lives in the designated area, and would mean that they would need to be granted permission to re-enter their community subject to the requirements stipulated by the instruments, thereby potentially limiting their freedom of movement. It appears that these remote geographical areas may have a high proportion of Indigenous people living there, although this has not been specifically addressed in the explanatory materials. As such, the restrictions may have a disproportionate impact on Indigenous persons. Consequently, the measure may also engage the right to equality and
non-discrimination,[6] which provides that everyone is entitled to enjoy their rights without distinction based on a personal attribute (for example, race).[7]
1.254 The initial analysis considered further information was required as to the compatibility of these measures with human rights, particularly the rights to freedom of movement, and equality and non-discrimination.
1.255 The full initial analysis is set out in Report 6 of 2020.
1.256 The committee considered that the measure, which is designed to prevent the spread of COVID-19, is likely to promote and protect the rights to life and health, noting that the right to life requires Australia to take positive measures to protect life and the right to health requires Australia to take steps to prevent, treat and control epidemic diseases. The committee noted that the measure may also limit the rights to freedom of movement and equality and non-discrimination. These rights may be subject to permissible limitations if they are shown to be reasonable, necessary and proportionate.
1.257 The committee sought the minister's advice as to the compatibility of this measure with human rights, particularly the rights to freedom of movement and equality and non-discrimination.
1.258 The minister advised:
The Determination
The Biosecurity (Human Biosecurity Emergency) (Human Coronavirus with Pandemic Potential) (Emergency Requirements for Remote Communities) Determination 2020 (Determination) specifies requirements to prevent or control the entry, emergence, establishment or spread of COVID-19 in designated remote areas in Australia, including establishing requirements for entry into those areas. These designated areas include remote indigenous communities in Queensland, Western Australia, South Australia and the Northern Territory.
On average, Australians living in remote areas have shorter lives, high levels of disease and face more challenges in accessing and using health services. In addition, Aboriginal and Torres Strait Islander people experience a burden of disease 2.3 times the rate of other Australians, which may increase the risk of severe infection.
In particular, Aboriginal and Torres Strait people in remote areas face a relatively high risk of severe disease from COVID-19 especially having regard to their higher burden of disease. The Determination and its amendments are designed to manage the risk posed by COVID-19 to remote communities in designated areas, by preventing or controlling the entry, emergence, establishment or spread of COVID-19 in those areas.
Amendments to the Determination
The Determination has been amended a number of times to improve the operational effectiveness of the Determination and to manage the risk posed by COVID-19. This includes amendments to remove designated areas where I have been satisfied that the Determination is no longer necessary.
The Biosecurity (Human Biosecurity Emergency) (Human Coronavirus with Pandemic Potential) (Emergency Requirements for Remote Communities) Amendment Determination (No. 1) 2020 (Amendment No. 1), limits the operation of essential activities to cases of urgency or in a manner agreed with a human biosecurity officer and varies the areas designated areas on and from 8 April 2020.
Amendment No.2, requires a person entering a designated area not to have been in a foreign country in the 14 days preceding entry and varies the areas designated on and from 24 April 2020.
The Biosecurity (Human Biosecurity Emergency) (Human Coronavirus with Pandemic Potential) (Emergency Requirements for Remote Communities) Amendment (No.3) Determination 2020 (Amendment No. 3), excludes some areas, such as the Northern Territory, from 5 June 2020 and allows certain persons to enter designated areas in certain circumstances such as for officials to fulfil regulatory obligations under Australian law relating to requirements on the export of food or agricultural commodities.
The Biosecurity (Human Biosecurity Emergency) (Human Coronavirus with Pandemic Potential) (Emergency Requirements for Remote Communities) Amendment (No. 4) Determination 2020 (Amendment No. 4), excludes Western Australia from the Determination on and from 5 June 2020 in light of the measures they have put in place to manage the risks posed by COVID-19.
The Biosecurity (Human Biosecurity Emergency) (Human Coronavirus with Pandemic Potential) (Emergency Requirements for Remote Communities) Amendment (No. 5) Determination 2020 (Amendment No. 5), excludes Queensland from the Determination on and from 12 June 2020 in light of the measures they have put in place to manage the risks posed by
COVID-19.
The Biosecurity (Human Biosecurity Emergency) (Human Coronavirus with Pandemic Potential) (Emergency Requirements for Remote Communities) Amendment (No. 6) Determination 2020 (Amendment No. 6), excludes the designated areas of the Maralinga Tjarutja Lands, the Point Pearce community and the Nepabunna community in South Australia from the Determination on and from 19 June 2020 in light of the measures they have put in place to manage the risks posed by COVID-19.
Human Rights
Notwithstanding a Statement of Compatibility with Human Rights is not required for these instruments; I note that they engage the right to life, right to freedom of movement, rights of equality and non-discrimination and right to health. In particular, COVID-19 represents a severe and immediate threat to human health in Australia and has the ability to cause high levels of morbidity and mortality.
The measures restrict entry into remote communities to reduce the risk of COVID-19 to residents of those communities. The limitations on the rights of equality and non-discrimination and right to freedom of movement are reasonable, necessary and proportionate. These measures promote the rights to life and health and are necessary to pursue a legitimate public health objective given the risks posed by COVID-19 to the health of Aboriginal and Torres Strait Islander people living in remote areas. I am also satisfied that the application of these measures to these communities is proportionate given their application for a discrete period. These measures are appropriate, likely to be effective, and are no more restrictive or intrusive than necessary.
As stated in my earlier letter, I am satisfied that the measures taken by the Government are necessary and appropriate to prevent or control the entry, emergence, establishment and/or spread of COVID-19 in Australia. The compatibility of these measures with human rights will continue to be an important consideration in the development of any additional measures taken by the Government in addressing the COVID-19 pandemic.
1.259 The minister has advised that the original determination, and amendments made to it (including the instrument under consideration) are designed to manage the risk posed by COVID-19 to remote communities in designated areas, by preventing or controlling the entry, emergence, establishment or spread of COVID-19 in those areas. The minister's response notes that Aboriginal and Torres Strait people in remote areas face a relatively high risk of severe disease from COVID-19 especially having regard to their higher burden of disease. The minister acknowledges that the measures engage the right to life, right to freedom of movement, rights of equality and non-discrimination and right to health, but that any limitations on the rights of equality and non-discrimination and right to freedom of movement are reasonable, necessary and proportionate. The minister advises that the measures pursue a legitimate public health objective given the risks posed by COVID-19 to the health of Aboriginal and Torres Strait Islander people living in remote areas, and are proportionate given their application for a discrete period. The minister has also advised that a number of restrictions have been removed in certain areas in light of the measures put in place to manage the risks posed by COVID-19.
1.260 As stated in the initial analysis, these measures would appear to promote the rights to life and health.[9] The limitation on the right to freedom of movement seeks to achieve the legitimate objective of protecting health, particularly in areas where people may be at higher risk, and appears to be proportionate given the time limited nature of the measure. As these remote geographical locations include a high proportion of Indigenous people, the measure would appear to have a disproportionate effect on the basis of race, and therefore limits the right to equality and non-discrimination. Differential treatment (including the differential effect of a measure that is neutral on its face) will not constitute unlawful discrimination if the differential treatment is based on reasonable and objective criteria such that it serves a legitimate objective, is rationally connected to that objective and is a proportionate means of achieving that objective.[10] As already noted, this measure seeks to achieve the legitimate objective of protecting health amongst potentially more vulnerable groups, and is limited in time, with measures taken to remove restrictions where the risk has passed. In assessing the proportionality of the measure, it would have been useful if the minister's response had addressed whether any consultation had occurred with the remote communities affected and whether the people in those communities had agreed with the need for additional restrictions to be placed on those communities on health grounds. However, it is noted that there is some evidence that consultation with affected communities took place when designating such locations.[11] Accordingly, any differential treatment would appear to be based on reasonable and objective criteria.
1.261 The committee thanks the minister for this response. The committee notes that this instrument amends requirements designed to prevent or control the entry or spread of COVID-19 in designated remote communities in Australia, including establishing requirements for entry to these areas, for the duration of the period of emergency under the Biosecurity Act 2015.
1.262 The committee considers that the measures, which are designed to prevent the spread of COVID-19, promote and protect the rights to life and health, noting that the right to life requires that Australia takes positive measures to protect life, and the right to health requires Australia takes steps to prevent, treat and control epidemic diseases. The committee further notes that the measures may limit the rights to freedom of movement and to equality and non-discrimination. These rights may be subject to permissible limitations if they are shown to be reasonable, necessary and proportionate.
1.263 The committee considers that as the measure seeks to achieve the legitimate objective of protecting health, particularly in areas where people are arguably more vulnerable to COVID-19, and given the time limited nature of the measure, any limitation on the right to freedom of movement is permissible as a matter of international human rights law. In addition, the committee considers that any differential treatment of Indigenous people in these remote communities is based on reasonable and objective criteria, particularly noting the consultation that occurred with elders, leaders and peak organisations[12] in determining which areas would be subject to these additional restrictions.
1.264 The committee has concluded its examination of this instrument.
[1] This entry can be cited as: Parliamentary Joint Committee on Human Rights, Biosecurity (Human Biosecurity Emergency) (Human Coronavirus with Pandemic Potential) (Emergency Requirements for Remote Communities) Amendment Determination (No. 2) 2020 [F2020L00466], Report 9 of 2020; [2020] AUPJCHR 116.
[2] Parliamentary Joint Committee on Human Rights, Report 6 of 2020 (20 May 2020), pp. 2-4.
[3] The Parliamentary Joint Committee on Human Rights considered this in Report 5 of 2020 (29 April 2020), pp. 6-9 and Report 7 of 2020 (17 June 2020), pp. 13-19.
[4] Biosecurity Act 2015, section 479.
[5] Right to life: Iinternational Covenant on Civil and Political Rights, article 6. Right to health: Iinternational Covenant on Economic, Social and Cultural Rights, article 12.
[6] International Covenant on Civil and Political Rights, articles 2 and 26. See also International Convention on the Elimination of All Forms of Racial Discrimination.
[7] The prohibited grounds of discrimination are race, colour, sex, language, religion, political or other opinion, national or social origin, property, birth or other status. Under 'other status' the following have been held to qualify as prohibited grounds: age, nationality, marital status, disability, place of residence within a country and sexual orientation. The prohibited grounds of discrimination are often described as 'personal attributes'.
[8] The minister's response to the committee's inquiries was received on 9 July 2020. This is an extract of the response. The response is available in full on the committee's website at: https://www.aph.gov.au/Parliamentary_Business/Committees/Joint/Human_Rights/Scrutiny_reports.
[9] Right to life: Iinternational Covenant on Civil and Political Rights, article 6. Right to health: Iinternational Covenant on Economic, Social and Cultural Rights, article 12.
[10] UN Human Rights Committee, General Comment 18: Non-Discrimination (1989) [13]; see also Althammer v Austria, UN Human Rights Committee Communication No. 998/01 (2003) [10.2].
[11] See Australian Government, Factsheet: Remote community entry requirements in place under the Biosecurity Act 2015, 29 April 2020, which states: 'The designated areas covered under these arrangements have been requested by state and territory governments, in consultation with community leaders and key stakeholders'. Available at: https://www.health.gov.au/sites/default/files/documents/2020/04/remote-community-entry-requirements-in-place-under-the-biosecurity-act-2015_0.pdf
[12] See the statement from the Minister for Indigenous Affairs, the Hon Ken Wyatt AM, MP who advised the Parliament on 14 May 2020 that the measure had been subject to consultation, stating 'So, right from the beginning, we worked with elders, leaders and peak organisations. Working with my colleague Greg Hunt, we used the Biosecurity Act to define secure areas for remote communities in order to isolate them from people bringing COVID-19 in. One of the best expressions I heard was from an elder who said, 'This thing has no songline, and we don't want to create a songline that brings death.', Minister for Indigenous Australians, House of Representatives, House Hansard, 14 May 2020, p. 3525.
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