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Australian Parliamentary Joint Committee on Human Rights |
Response required
1.17 The committee seeks a response from the relevant minister with respect to the following bill and instruments.
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Purpose
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These instruments determine requirements 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. The instruments commenced on
26 March 2020 and 8 April 2020
respectively, and remain in force for the
duration of the human biosecurity emergency period
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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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These instruments are 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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Seeking additional information
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1.18 The Biosecurity (Human Biosecurity Emergency) (Human Coronavirus with Pandemic Potential) (Emergency Requirements for Remote Communities) Determination 2020 (first instrument) designates a number of geographical areas in Western Australia, Queensland, South Australia and the Northern Territory for the purposes of the Biosecurity Act 2015 (Biosecurity Act), and establishes that persons cannot enter these areas except in specified circumstances.
1.19 The Biosecurity (Human Biosecurity Emergency) (Human Coronavirus with Pandemic Potential) (Emergency Requirements for Remote Communities) Amendment (No. 1) Determination 2020 amends the first instrument to amend the circumstances in which a person can enter.
1.20 These instruments are made under section 477(1) of the Biosecurity Act, 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. Failure to comply with such a direction is a criminal offence punishable by five years' imprisonment, or a penalty of up to $63,000.
1.21 The explanatory statement notes that the purpose of designating these geographical areas for the purpose of the Biosecurity Act is to prevent or control the entry or spread of COVID-19 in these areas.[2] As the measure is intended to prevent 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.[3] However, by restricting entry to these locations 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,[4] which provides that everyone is entitled to enjoy their rights without distinction based on a personal attribute (for example, race).[5]
1.22 These rights may be subject to permissible limitations where the limitation pursues a legitimate objective, is rationally connected to that objective and is a proportionate means of achieving that objective.
1.23 As there is no statement of compatibility accompanying the explanatory statement to this instrument,[6] no assessment of the compatibility of this measure with any human rights has been provided. Further information is required as to the compatibility of these measures with human rights, particularly the rights to freedom of movement, and equality and non-discrimination.
1.24 The committee notes that these instruments determine requirements 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.
1.25 The committee considers 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 notes 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.
1.26 As no statement of compatibility has been provided, the committee seeks the minister's advice as to the compatibility of these measures with human rights, particularly the rights to freedom of movement and equality and non-discrimination.[7]
[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) Determination 2020 [F2020L00324], Report 5 of 2020; [2020] AUPJCHR 65.
[2] Explanatory statement, p. 1.
[3] 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.
[4] International Covenant on Civil and Political Rights, articles 2 and 26. See also International Convention on the Elimination of All Forms of Racial Discrimination.
[5] 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'.
[6] Noting that section 9 of the Human Rights (Parliamentary Scrutiny) Act 2011 only requires rule-makers to prepare a statement of compatibility in relation to a legislative instrument that is subject to disallowance under section 42 of the Legislation Act 2003.
[7] The committee's consideration of the compatibility of a measure which limits rights is assisted if the response addresses the limitation criteria set out in the committee's Guidance Note 1, pp. 2-3.
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URL: http://www.austlii.edu.au/au/other/AUPJCHR/2020/65.html