Biosecurity (Human Health Response Zone) (Howard Springs Accommodation Village) Determination 2020 [F2020l00107] [2020] AUPJCHR 67 (29 April 2020)

	Home \| Databases \| WorldLII \| Search \| Feedback Australian Parliamentary Joint Committee on Human Rights

Purpose	The instrument specifies the Howard Springs Accommodation Village as a human health response zone for the purposes of the Biosecurity Act 2015 and sets requirements for individuals entering and leaving the zone. It operates for three months from 8 February 2020
Portfolio	Health
Authorising legislation	Biosecurity Act 2015
Disallowance	This instrument is exempt from disallowance (see subsection 113(7) of the Biosecurity Act 2015)
Rights	Life; health; freedom of movement; equality and non-discrimination
Status	Seeking additional information

Determining a human health response zone for the purposes of the Biosecurity Act 2015

1.36 The Biosecurity Act 2015 (Biosecurity Act) enables the Director of Human Biosecurity to determine that a specified area is a human health response zone, if the Director is satisfied that it is necessary to do so for the purposes of preventing, or reducing the risk of, a listed human disease emerging, establishing itself or spreading in Australian territory or a part of Australian territory.^[2] Such a determination must specify any requirement for individuals entering or leaving the zone and/or a requirement that specified classes of individuals must not enter the zone.

1.37 This instrument lists the Howard Springs Accommodation Village (Howard Springs) in the Northern Territory as a human health response zone, and specifies that only the following people can enter the zone: a person (including a person accompanying a child or incapable person) who has entered Australia on an aircraft carrying passengers being transported to Australia due to COVID-19; a biosecurity officer; and an individual who has authority from the person who has operational control over Howard Springs to enter. It also provides that a person (other than a child or incapable person) who is in the zone after having entered Australia on an aircraft due to COVID-19 must, before leaving the zone, communicate, or attempt to communicate, their intention to leave the zone to the person who has operational control over Howard Springs.^[3] A civil penalty of 30 penalty units applies for failure to comply with a requirement under the Determination.^[4]

Preliminary international human rights legal advice

Rights to life, health, freedom of movement, and equality and non-discrimination

1.38 The designation of Howard Springs as a human health response zone, and the corresponding limitation on persons who may enter the zone, engages a number of human rights. 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.^[5]

1.39 The explanatory statement notes that Howard Springs will temporarily house individuals who requested repatriation from Wuhan city, China in isolation, with medical care and supervision, for approximately 14 days.^[6] By restricting entry to and exit from this location, this measure may limit the right to freedom of movement, which includes the right to move freely within a country for those who are lawfully within the country.^[7] Further, as this measure only applies to persons being repatriated from Wuhan in China, it may disproportionately impact on persons of a particular nationality. Consequently, the measure may also engage the right to equality and non-discrimination,^[8] which provides that everyone is entitled to enjoy their rights without distinction based on a personal attribute (for example, nationality).^[9]

1.40 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.

1.41 As there is no statement of compatibility accompanying the explanatory statement to this instrument,^[10] no assessment of the compatibility of this measure with any human rights has been provided. Further information is required as to the compatibility of this measure with human rights, particularly the rights to freedom of movement, and equality and non-discrimination.

Committee view

1.42 The committee notes that this instrument specifies the Howard Springs Accommodation Village in the Northern Territory as a human health response zone for the purposes of the Biosecurity Act 2015, which sets requirements for individuals entering and leaving the zone, and operates for three months from 8 February 2020.

1.43 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.

1.44 As no statement of compatibility has been provided, the committee seeks the minister's advice as to the compatibility of this measure with human rights, particularly the rights to freedom of movement, and equality and

[1] This entry can be cited as: Parliamentary Joint Committee on Human Rights, Biosecurity (Human Health Response Zone) (Howard Springs Accommodation Village) Determination 2020 [F2020L00107], Report 5 of 2020; [2020] AUPJCHR 67.

[3] Note also that subsection 113(5) of the Biosecurity Act 2015 provides that the determination does not specify as a requirement a biosecurity measure that may be included in a biosecurity control order applied to an individual. These biosecurity measures, set out at sections 85-97 of the Biosecurity Act 2015, may also include measures which restrict a person's behaviour.

[5] Right to life: International Covenant on Civil and Political Rights, article 6. Right to health: International Covenant on Economic, Social and Cultural Rights, article 12.

[8] Articles 2 and 26 of the International Covenant on Civil and Political Rights.

[9] 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'.

[11] 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.

Australian Parliamentary Joint Committee on Human Rights