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Australian Parliamentary Joint Committee on Human Rights |
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Purpose
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The Biosecurity (Exit Requirements) Determination 2020 requires persons who
are departing from prescribed airports and arriving in
prescribed countries to
be screened by a biosecurity officer or human biosecurity officer for the
purposes of establishing whether
the individual may be, or may have been,
infected with human coronavirus with pandemic potential. Screening may be by
equipment or
by being required to answer questions or provide information in
writing. This instrument commenced on 26 March 2020
The Biosecurity (Exit Requirements) Amendment (Nauru) Determination
2020 adds Nauru to the list of countries for which exit screening
of
individuals applies. This instrument commenced on 2 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 45(3) of the
Biosecurity Act 2015)
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Rights
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Life; health; and privacy
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Status
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Seeking additional information
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1.71 The Biosecurity (Exit Requirements) Determination 2020 (principal determination) provides that where a person is leaving a designated Australian international airport and is bound for the Cook Islands; Fiji; New Caledonia; Papua New Guinea; Samoa, Solomon Islands; Timor-Leste; Tonga or Vanuatu, they must be screened by a biosecurity officer or a human biosecurity officer (whether by equipment or by being required to answer questions or provide information in writing) for the purpose of establishing whether the individual may be, or may have been, infected with COVID-19. Failure to comply is subject to a civil penalty of 30 penalty units (currently $6,300).[2]
1.72 The Biosecurity (Exit Requirements) Amendment (Nauru) Determination 2020 adds Nauru to the list of countries for which exit screening of individuals applies.
1.73 These instruments are made under section 45(2) of the Biosecurity Act 2015 (Biosecurity Act), which enables the Minister for Health to establish exit requirements in order to prevent a listed human disease from spreading to another country.
1.74 The screening of a person who is leaving a designated Australian international airport for the purpose of establishing whether the individual may be, or may have been, infected with COVID-19, engages a number of human rights. The explanatory statement notes that this instrument seeks to protect the public health in Pacific Island Countries and Timor-Leste through the prescription of requirements for individuals or any class of individuals leaving Australian territory, to prevent a listed human disease from entering, or establishing itself or spreading in those neighbouring countries. As these measures are intended to prevent the spread to neighbouring countries of COVID-19, which has the ability to cause high levels of morbidity and mortality, it would appear that the measure is likely to promote the rights to life and health in those countries.[3]
1.75 However, requiring persons to answer questions, provide information in writing, or undergo some other form of testing engages and may limit the right to privacy. The right to privacy includes respect for informational privacy, including the right to respect for private and confidential information, particularly the storing, use and sharing of such information.[4] The right to privacy includes the right to personal autonomy and physical and psychological integrity, and extends to protecting a person's bodily integrity against compulsory procedures.[5] The right to privacy 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.
1.76 The statement of compatibility to the principal determination notes that this measure promotes the right to health; however, it does not recognise that the right to privacy is engaged. Further information is required as to the compatibility of this measure with the right to privacy, in particular what safeguards apply to protect the use and disclosure of any information collected as a result of this determination. In assessing the compatibility of this measure, it also does not appear that the measure is limited to only applying during the COVID-19 pandemic. Further information is required as to whether the instruments are time limited and, if not, why they have not been time limited.
1.77 The committee notes that these instruments require persons who are departing from prescribed airports and arriving in 10 prescribed countries to be screened to establish if they may be, or may have been, infected with COVID-19. Screening may be by equipment or by being required to answer questions or provide information in writing.
1.78 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 right to privacy. This right may be subject to permissible limitations if it is shown to be reasonable, necessary and proportionate.
1.79 As this has not been addressed in the statement of compatibility, the committee seeks the minister's advice as to the compatibility of this measure with the right to privacy.
[1] This entry can be cited as: Parliamentary Joint Committee on Human Rights Biosecurity (Exit Requirements) Determination 2020 [F2020L00323], Report 5 of 2020; [2020] AUPJCHR 71.
[2] Biosecurity Act 2015, subsection 46(1).
[3] 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(1).
[4] Every person should be able to ascertain which public authorities or private individuals or bodies control or may control their files and, if such files contain incorrect personal data or have been process contrary to legal provisions, every person should be able to request rectification or elimination. UN Human Rights Committee, General Comment No. 16: Article 17 (1988) [10]. See also, General Comment No. 34 (Freedom of opinion and expression) (2011), [18].
[5] See, MG v Germany, UN Human Rights Committee Communication No. 1428/06 (2008), [10.1].
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URL: http://www.austlii.edu.au/au/other/AUPJCHR/2020/71.html