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Australian Parliamentary Joint Committee on Human Rights |
1.18 The committee draws the following legislative instruments to the attention of the relevant minister on an advice only basis. The committee does not require a response to these comments.
Biosecurity (Human Biosecurity Emergency) (Human Coronavirus with Pandemic Potential) (Emergency Requirements) Amendment Determination (No. 2) 2020 [F2020L00594]
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Purpose
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The Biosecurity (Human Biosecurity Emergency) (Human Coronavirus with
Pandemic Potential) (Emergency Requirements) Amendment Determination
(No. 2)
2020 extends the operation of existing provisions until 17 September 2020 to
prevent a cruise ship from entering Australian
territory or Australian ports,
unless an exemption applies to the ship.
The Biosecurity (Human Biosecurity Emergency) (Human Coronavirus with
Pandemic Potential) Variation (Extension) Instrument 2020 amends
the Biosecurity
(Human Biosecurity Emergency) (Human Coronavirus with Pandemic Potential)
Declaration 2020 to extend the human biosecurity
emergency period for a further
3 months until 17 September 2020.
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Portfolio
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Health
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Authorising legislation
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Last day to disallow
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These instruments are exempt from disallowance (see subsections 475(2) and
477(2) of the Biosecurity Act 2015)
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Rights
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Life; health; freedom of movement
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Status
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Advice only
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1.19 The Biosecurity (Human Biosecurity Emergency) (Human Coronavirus with Pandemic Potential) Variation (Extension) Instrument 2020 [F2020L00574] varies the Biosecurity (Human Biosecurity Emergency) (Human Coronavirus with Pandemic Potential) Declaration 2020 (the Declaration) to extend the human biosecurity emergency period for a further three months until 17 September 2020. The Declaration was made pursuant to section 475 of the Biosecurity Act 2015 (the Biosecurity Act), and declared that a human biosecurity emergency exists regarding the listed human disease ‘human coronavirus with pandemic potential’ (COVID-19). The effect of the Declaration, and this variation, is to enable the Health Minister to exercise powers under the Biosecurity Act to deal with a human biosecurity emergency.[2]
1.20 The Biosecurity (Human Biosecurity Emergency) (Human Coronavirus with Pandemic Potential) (Emergency Requirements) Amendment Determination (No. 2) 2020 [F2020L00594] extends the operation of a ban on cruise ships from entering Australian territory or Australian ports, unless an exemption applies to the ship, to 17 September 2020.
1.21 The variation of these instruments to extend the human biosecurity emergency period, and the ban on cruise ships, for a further three months until 17 September 2020, 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.[3]
1.22 However, extending the biosecurity emergency period, and thereby continuing to enliven the various powers under the Biosecurity Act, is likely to limit a number of rights (including, freedom of movement, equality and non-discrimination and privacy, by way of examples). The extension of the cruise ship ban, and international travel ban, engage and limit the right to freedom of movement.
1.23 Most of 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. These measures are directed towards a legitimate objective, being the prevention of the spread of COVID-19, an infectious disease with the ability to cause high levels of morbidity and mortality. Further, noting that the measures seek to protect the general Australian population and neighbouring countries from exposure to COVID-19, they would also appear to be rationally connected to that objective. With respect to proportionality, it is significant that these are temporary measures. It would therefore appear that any limitation on human rights caused by these instruments may be permissible as a matter of international human rights law. However, as there are no statements of compatibility accompanying the explanatory statements to these instruments,[4] no assessment of the compatibility of these measures with any human rights has been provided.
1.24 The committee notes that these instruments extend the human biosecurity emergency period for a further three months until 17 September 2020 (thereby continuing to enliven various powers under the Biosecurity Act 2015) and extend the ban on cruise ships in Australian territory to the same date.
1.25 The committee considers that the measures, which are designed to prevent the spread of COVID-19, are 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 measures may also limit a number of other rights, including, for example, the right to freedom of movement. These rights may be subject to permissible limitations if they are shown to be reasonable, necessary and proportionate. The committee considers that in light of the critical need to prevent the spread of COVID-19, and as these measures are temporary, any limit on rights is permissible as a matter of human rights law.
1.26 The committee notes that a statement of compatibility was not provided with these instruments, as this was not required as a matter of law.[5] Given the potential impact on human rights of legislative instruments dealing with the COVID-19 pandemic, the committee considers it would be appropriate for all such legislative instruments to be accompanied by a detailed statement of compatibility.
[1] This entry can be cited as: Parliamentary Joint Committee on Human Rights, Biosecurity (Human Biosecurity Emergency) (Human Coronavirus with Pandemic Potential) (Emergency Requirements) Amendment Determination (No. 2) 2020 [F2020L00594] and Biosecurity (Human Biosecurity Emergency) (Human Coronavirus with Pandemic Potential) Variation (Extension) Instrument 2020 [F2020L00574], Report 7 of 2020; [2020] AUPJCHR 92.
[2] For an overview of the powers in the Biosecurity Act 2015 relating to human diseases, see Parliamentary Joint Committee on Human Rights, Report 5 0f 2020: Human rights scrutiny of COVID-19 legislation (29 April 2020), pp. 4-5.
[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.
[4] 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.
[5] Human Rights (Parliamentary Scrutiny) Act 2011, section 9, only requires statements of compatibility to be provided for legislative instruments that are subject to disallowance. This instrument is exempt from disallowance.
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URL: http://www.austlii.edu.au/au/other/AUPJCHR/2020/92.html