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Australian Parliamentary Joint Committee on Human Rights |
2.1 This chapter considers responses to matters raised previously by the committee. The committee has concluded its examination of these matters on the basis of the responses received.
2.2 Correspondence relating to these matters is available on the committee's website.[1]
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Purpose
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This bill seeks to amend the Biosecurity Act 2015 to:
• expand pre-arrival reporting requirements for aircraft and
vessels;
• create a mechanism to make a human biosecurity group
direction;
• increase civil and criminal penalties for contraventions relating
to biosecurity risks to goods and non-compliance with negative
pratique
requirements;
• conduct a risk assessment for the purposes of making certain
determinations or granting an import permit;
• permit the Agriculture Minister and Health Minister to authorise
the expenditure directly through the Act
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Portfolio
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Agriculture, Water and the Environment
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Introduced
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House of Representatives, 1 September 2021
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Rights
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Life; health; liberty; freedom of movement; privacy; rights of the child;
and rights of persons with disability
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2.3 The committee requested a response from the minister in relation to the bill in Report 11 of 2021.[3]
2.4 The bill seeks to make a number of amendments to the Biosecurity Act 2015 (Biosecurity Act), including to allow a chief human biosecurity officer or a human biosecurity officer to make a human biosecurity group direction (direction). This direction could cover a class of people on board an aircraft or vessel that is in, or landing in, Australian territory. The officer must be satisfied that one or more individuals in that class have, or have been exposed to, a listed human disease.[4] The direction would initially be in force for no more than eight hours; this may be extended, but by no more than 4 hours.[5] However, if the time expires and the officer is satisfied that the class of individuals still requires management, the officer may consider making a new direction for a further eight to 12 hours.[6]
2.5 A direction would be able to require each individual in the class of individuals specified in the direction to do one or more of the following:
• provide the prescribed contact information of anyone they have been, or will be, in close proximity with (if they know the contact details), and information about their past location;[7]
• go to, and remain at, a specified place for a specified period, and to not visit a specified place, or specified class of place, for a specified period (which cannot be longer than the period during which the direction is in force);[8]
• wear either or both specified clothing and equipment designed to prevent a disease from emerging, establishing itself or spreading. The relevant officer may give an individual an exemption from this requirement; [9]
• undergo a specified kind of examination relating to determining the presence in the individual of a listed human disease. The direction can specify the kind of examinations that require consent for an examination, and how that consent is to be given.[10] This must be carried out in a manner consistent with appropriate medical standards and appropriate other relevant professional standards;[11]
• for those who have undergone such an examination, require them to provide specified body samples for the purpose of determining the presence of a listed human disease. This only applies if the person gives consent (however, the bill notes that these new powers do not override the existing powers to impose human biosecurity control orders over an individual).[12] The taking of the body samples must also be carried out in a manner consistent with appropriate medical standards and other relevant professional standards.[13] The regulations will prescribe the requirements for taking, storing, transporting, labelling and using the body samples provided.[14]
2.6 The bill also provides that force must not be used against an individual to require compliance.[15] Instead, non-compliance with a direction may result in the imposition of a civil penalty of up to 30 penalty units, or $6,660.[16] This includes a failure by an accompanying person for a child or incapable person to comply with a direction to ensure the compliance of the child or incapable person.[17] The bill also makes amendments to provide that an accompanying person for a child or incapable person may give consent on behalf of the child or incapable person for the purposes of these new directions powers.[18] The Biosecurity Act defines a ‘child or incapable person’ as someone less than 18 years old, or 18 years and older and either incapable (whether permanently or temporarily) of understanding the general nature and effect of, and purposes of carrying out, a biosecurity measure, or of indicating whether he or she consents to a biosecurity measure.[19]
2.7 The power to issue directions to require groups of individuals to provide personal information, specify where individuals must go for up to 12 hours (or longer if a further direction is made), require certain clothing and equipment to be worn and require individuals to undergo specified kinds of examinations, engages a number of human rights. As the directions power is intended to prevent the spread of serious communicable diseases (such as COVID-19), which may cause high levels of morbidity and mortality, the bill may promote the rights to life and health.[20] The right to life requires States parties to take positive measures to protect life.[21] The United Nations (UN) Human Rights Committee has stated that the duty to protect life implies that States parties should take appropriate measures to address the conditions in society that may give rise to direct threats to life, including life threatening diseases.[22] The right to health requires that States parties shall take steps to prevent, treat and control epidemic diseases.[23]
2.8 However, this potentially coercive power is likely to engage and limit a number of rights, including the rights to liberty and freedom of movement, the right to a private life and the rights of the child and persons with disabilities. The right to liberty prohibits states from depriving a person of their liberty except in accordance with the law, and provides that no one shall be subject to arbitrary detention.[24] It applies to deprivations of liberty, rather than mere restrictions on whether a person can freely move around. However, a restriction on a person's movement may be to such a degree and intensity that it would constitute a 'deprivation' of liberty, particularly if an element of coercion is present. The right to freedom of movement encompasses the right to move freely within a country for those who are lawfully within the country.[25] This right is linked to the right to liberty—a person's movements should not be unreasonably limited by the state. The directions power also limits the right to a private life, which prohibits arbitrary and unlawful interferences with an individual's privacy.[26] A private life is linked to notions of personal autonomy and human dignity. It includes the idea that individuals should have an area of autonomous development; a 'private sphere' free from government intervention and excessive unsolicited intervention by others.
2.9 There are also specific rights owed to children and to persons with disabilities, which the bill may limit by enabling an accompanying person to give consent on behalf of a ‘child or incapable person’ to any requirements in the direction, and in requiring the wearing of certain clothing or equipment, which may create particular difficulties for persons with certain impairments.
2.10 Children have special rights under human rights law taking into account their particular vulnerabilities.[27] Australia is required to ensure that, in all actions concerning children, the best interests of the child are a primary consideration.[28] This requires legislative, administrative and judicial bodies and institutions to systematically consider how children's rights and interests are or will be affected directly or indirectly by their decisions and actions.[29] Further, States parties are required to assure to a child capable of forming his or her own views the right to express those views freely in all matters affecting the child.[30] The views of the child must be given due weight in accordance with the age and maturity of the child.
2.11 The rights of persons with disabilities includes the obligation for the State to take into account the protection and promotion of the human rights of persons with disabilities in all policies and programmes.[31] Further, persons with disabilities have the right to equal recognition before the law, which includes the right to enjoy legal capacity on an equal basis with others in all aspects of life.[32] The UN Committee on the Rights of Persons with Disabilities has emphasised that prior to the provision of medical treatment or health care or the making of decisions relating to a person's physical or mental integrity, decision-makers must obtain the free and informed consent of persons with disabilities.[33] States parties should take appropriate measures to provide access to support for persons with disabilities in exercising their legal capacity, and substituted decision-making should be replaced by supported decision-making.[34]
2.12 Protecting public health is a legitimate objective for the purposes of international human rights law, and ensuring the Commonwealth has suitable mechanisms to identify and control the spread of serious communicable diseases appears rationally connected to that objective. A key aspect of whether a limitation on a right can be justified is whether the limitation is proportionate to the objective being sought.
2.13 In order to assess the compatibility of this measure with a number of human rights, further information was sought as to:
(a) why the legislation does not require that if an officer is made aware of a disability that would affect a person’s ability to comply with the direction, that they must consider making an exemption;
(b) why there is no legislative criteria as to the type of examinations that will require consent (e.g. anything invasive) and a specific requirement that such examinations be undertaken with regard to the dignity, and where necessary, privacy, of the person being examined;
(c) why there is no flexibility for officers to grant exemptions from the requirement to undergo certain examinations;
(d) why the bill provides no guidance as to when body samples must be destroyed (for example, once testing has been completed), noting that body samples can contain sensitive personal information; and
(e) how empowering an accompanying person of a ‘child or incapable person’ to give consent on their behalf to undergo examinations and provide body samples, without requiring any consideration as to the wishes of the child or incapable person, is compatible with the rights of the child and the rights of persons with disabilities.
2.14 As this measure is designed to prevent the spread of serious communicable diseases (such as COVID-19), the committee considered it promotes 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 that Australia takes steps to prevent, treat and control epidemic diseases.
2.15 The committee also considered that these potentially coercive powers also engage and limit a number of other rights, including the rights to liberty and freedom of movement, the right to a private life and the rights of the child and persons with disabilities. The committee considered the measure seeks to achieve the legitimate objective of protecting public health, and ensuring the Commonwealth has suitable mechanisms to identify and control the spread of serious communicable diseases appears rationally connected to that objective. However, the committee noted questions remained as to the proportionality of the measure, and as such sought the minister's advice as to the matters set out at paragraph [2.13].
2.16 The full initial analysis is set out in Report 11 of 2021.
2.17 The minister advised:
a) Why the legislation does not require that if an officer is made aware of a disability that would affect a person’s ability to comply with the direction, that they must consider making an exemption
The intention of new section 108M of the Bill is to minimise the risk of contagion of a listed human disease, through the wearing of appropriate protective clothing and equipment, and appropriate instruction in its use. A chief human biosecurity officer or human biosecurity officer may exempt an individual from the requirement to wear protective clothing or equipment under new subsection 108M(3). As the Committee has noted, the legislation does not separately require the officer, if made aware of a disability, to consider making an exemption under subsection 108M(3). The reasons for this approach are threefold.
First, the present drafting of the exemption in subsection 108M(3) provides greater flexibility to appropriately respond in the circumstances of each individual case. Decisions that are made in relation to exemptions will draw upon the officer’s clinical expertise or qualifications, taking into account each individual’s specific medical needs, the particular epidemiology of the infectious disease and the evolving operational context in which the human biosecurity group direction is given. A requirement to consider the exemption once aware of a disability would be too prescriptive, and it would not be possible to exhaustively state all the specific circumstances or operational contexts that might give rise to an exemption.
Second, further safeguards in the Bill already ensure that chief human biosecurity officers and human biosecurity officers will properly apply the biosecurity measure in section 108M and will grant exemptions under subsection 108M(3) where appropriate in the circumstances.
In particular, officers must be satisfied that the inclusion of a requirement under section 108M in a human biosecurity group direction would contribute to managing the risk of contagion of a listed human disease, or the risk of a listed human disease entering, emerging, establishing itself or spreading in Australian territory (see new subsection 108B(6)). Further, before making a decision in relation to a biosecurity measure that is included in the group direction (including under section 108M), subsection 34(2) also requires the officer to be satisfied of a number of important considerations. These include that the measure is likely to be effective in managing such risks; that it is appropriate and adapted to manage such risks; that the circumstances are sufficiently serious to justify the measure; that the manner in which the measure is to be imposed is no more restrictive or intrusive than is required in the circumstances; and that the period of the measure is only as long as is necessary.
For example, if a human biosecurity officer is satisfied that a disability would affect a person’s ability to comply with the measure under section 108M to wear protective clothing or equipment, then the officer would already be required to consider, among other things, whether this measure would be appropriate or adapted to manage the risk of contagion of the listed human disease. If the officer is not satisfied that the considerations in subsection 34(2) could be met unless an exemption is granted under subsection 108M(3), then that would be the appropriate course of action. Further, this Bill also does not affect the application of any other Australian law, for example, the Disability Discrimination Act 1992, that may also be relevant in the clinical decision making and operational application of these provisions.
Finally, the exemption in subsection 108M(3) strikes the right balance between flexibility in clinical decision-making to meet individual needs and the core objective of human biosecurity group directions in managing the human health risks posed by a class of individuals.
The new human biosecurity group direction mechanism is intended to fill a gap in the Commonwealth’s biosecurity framework to manage a group of individuals for preliminary assessment and management of risks to human health, for example, where a number of passengers onboard a large incoming cruise vessel have signs or symptoms of a listed human disease. In the context of such time-critical decision-making processes, where there are potentially a large number of individuals to be assessed and contagion risks to be managed, further mandatory decision-making considerations (in addition to subsection 108B(6) and subsection 34(2) identified above) are not considered necessary.
b) Why there is no legislative criteria as to the type of examinations that will require consent (e.g. anything invasive) and a specific requirement that such examinations be undertaken with regard to the dignity, and where necessary, privacy, of the person being examined
It is not considered necessary to include further specific legislative criteria in the Bill in relation to examinations conducted under section 108N. This is because the existing legislative criteria in the Bill in relation to examinations are already sufficient to ensure informed consent and to safeguard an individual’s rights to dignity and, where necessary, privacy. There are a number of reasons for this.
First, the decision of the chief human biosecurity officer or human biosecurity officer to impose a biosecurity measure to undergo an examination under section 108N, and to determine how consent is to be given, will be informed by clinical knowledge and expertise. In order to accommodate the dynamic context of human biosecurity risk, including novel and emerging infectious diseases and rapidly changing medical technology used in examinations for diagnostic purposes, it is necessary for section 108N to be appropriately flexible to meet future needs of managing human health risks.
Second, clinical decisions made in relation to the requirement to undergo an examination under section 108N would also be subject to a number of significant safeguards, which limit measures to only those that are appropriate and adapted to achieving the legitimate objective of protecting human health. As discussed above, subsections 108B(6) and subsection 34(2) require the chief human biosecurity officer or human biosecurity officer to be satisfied of several important considerations before including a biosecurity measure under section 108N in a human biosecurity group direction. For example, if temperature checks are considered to be effective in managing the risk of contagion of a listed human disease by identifying those individuals with a fever, the officer would then need to consider whether the manner in which the requirement for a temperature check is imposed (including whether and how consent is to be given) is no more restrictive or intrusive than is required in the circumstances, and whether it is appropriate and adapted to managing the risk. In some circumstances, the officer may decide that certain examinations would be inappropriate or too intrusive if there is no consent, in which case they can require that consent must be given before undergoing the examination, and also determine how consent can be given.
A further safeguard in new section 108R stipulates that examinations must be carried out in accordance with appropriate medical standards or other relevant professional standards. The chief human biosecurity officer or human biosecurity officer will make the decision on what examination needs to be undertaken in accordance with the human biosecurity group direction. The Medical Board of Australia sets out a code of conduct for all doctors in Australia. It is not envisaged that the chief human biosecurity officer or human biosecurity officer will always personally undertake the examinations. It is likely they will instruct other medical professionals to undertake those tasks. Appropriate medical and professional standards would apply. This standard usually means the degree of care and skill of the average health care provider who practices in the provider's specialty, taking into account the medical knowledge that is available in the field, or the level at which the average, prudent provider in a given community would practice or how similarly qualified practitioners would have managed the patient's care under the same or similar circumstances. This means the ‘standard’ is not static but evolves over time as evidence emerges and practice changes. The process must be carried out in accordance with the medical ‘standard of the day’. It is important to note that some states and territories have their own legislation governing medical and professional standards. Given that there may be many different types of medical professionals who may need to conduct examinations under new section 108R in different states and territories, it would be too cumbersome to list exactly which standards apply, based on the speciality.
Further, proposed section 108S would ensure that there be no use of force against an individual to require the individual to comply with a biosecurity measure, including an examination under section 108N.
With regard to personal privacy, there are further measures in place to protect the personal information of relevant individuals (for example, in relation to personal medical details disclosed during an examination). Part 2 of Chapter 11 of the Biosecurity Act already contains a detailed regime for the use, record or disclosure of information under the Biosecurity Act, and further protections are afforded to "protected information" which is defined in section 9 as including "personal information" as defined under the Privacy Act 1988 (Cth). Breaches of the obligations regarding protected information are subject to stringent penalty provisions under section 585 that deals with the unauthorised use, record or disclosure of protected information.
c) Why there is no flexibility for officers to grant exemptions from the requirement to undergo certain examinations
The Bill already contains a number of mechanisms to allow individual circumstances to be taken into account in relation to an examination conducted under new section 108N. In the event that consent is required for the examination, but the individual does not wish to provide such consent, then that requirement would not apply to the individual (subsection 108N(3)), and there is no need to provide a separate exemption. In other situations where the chief human biosecurity officer or human biosecurity officer decides that it is not appropriate for an individual to undergo a certain examination, alternative measures may be considered.
In particular, under existing Part 3 of Chapter 2 of the Biosecurity Act, a human biosecurity control order may be imposed on an individual to manage the risks posed to human health. The order could, for instance, provide for an alternative biosecurity measure, which could be tailored to suit the individual’s circumstances, while also achieving the objective of managing human health risks. In this context, the existence of a human biosecurity group direction would not limit the imposition of a human biosecurity control order (see subsection 108J(1)). Further, new subsection 108J(2) would apply so that if an individual in a class specified in the human biosecurity group direction is subject to a human biosecurity control order, the group direction would cease to be in force in relation to that individual. Safeguards already apply for the imposition of a human biosecurity control order, including the general protections under section 34. In addition, relevant medical and other professional standards apply in relation to any alternative examinations conducted under section 90, and also include that there be no use of force against an individual to require the individual to comply with such a biosecurity measure (see sections 94 and 95).
The availability of existing Part 3 human biosecurity control orders therefore creates a flexible mechanism to, in effect, ‘carve out’ an individual from the application of a human biosecurity group direction. This regime permits consideration of the circumstances of a particular individual, adheres with other relevant obligations in the Biosecurity Act, and upholds medical and professional standards, whilst also securing the legitimate objective of managing the human health risks of a listed human disease.
d) Why the bill provides no guidance as to when body samples must be destroyed (for example, once testing has been completed), noting that body samples can contain sensitive personal information
Under new subsection 108P(1), an individual who has undertaken an examination under section 108N may be required to provide specified body samples for the purposes of determining the presence of certain listed human diseases.
Pursuant to subsection 108P(2), an individual is only required to provide a body sample if the individual consents to do so in the manner specified in the direction as required by subsection 108P(3). Subsection 108P(4) then provides that the regulations must prescribe requirements for taking, storing, transporting, labelling and using body samples provided under subsection 108P(1).
The current framework in subsection 108P(4) of the Bill to allow the requirements for body samples to be prescribed in the regulations offers suitable flexibility for the administrative and procedural nature of such matters, while still retaining suitable clarity and transparency. The prescription of such matters in the regulations is also consistent with the equivalent provisions in the Biosecurity Act for the requirements for body samples in relation to human biosecurity control orders (see subsection 91(3)). Further, the provision of body samples is already subject to the safeguard in new section 108R that the biosecurity measures must be carried out in a manner consistent with appropriate medical standards and other relevant professional standards. As noted above, some states and territories have their own legislation governing medical and professional standards, which extends to standards in relation to the destruction of body samples. In light of the existing framework in the Bill and the relevant standards, it is not considered necessary to exhaustively set out the circumstances in which body samples must be destroyed, and would in fact create the potential for duplicative or conflicting standards.
Additional safeguards apply through the regime in Part 2 of Chapter 11 of the Biosecurity Act for the use, record or disclosure of information. As discussed above, "protected information" is defined in section 9 of the Biosecurity Act as including "personal information" as defined under the Privacy Act 1988 and is afforded additional protections. To the extent that the body samples collected under section 108P contain personal information, then this will be dealt with as "protected information" for the purposes of the Biosecurity Act. Additional protections would apply under this framework, together with significant penalties for the unauthorised use, record or disclosure of protected information under section 585. Given the current regime for the confidentiality of information under the Biosecurity Act, it is not considered necessary to impose separate requirements for handling personal information collected in body samples.
e) How empowering an accompanying person of a ‘child or incapable person’ to give consent on their behalf to undergo examinations and provide body samples, without requiring any consideration as to the wishes of the child or incapable person, is compatible with the rights of the child and the rights of persons with disabilities.
The application of the general protections in section 34 to decisions concerning the human biosecurity group direction would provide for consideration of the rights enshrined in the International Covenant on Civil and Political Rights, the Convention on the Rights of the Child, the Convention on the Rights of Persons with Disability, and the personal protections enshrined in the International Health Regulations. In making such a direction, and including relevant biosecurity measures, subsection 34(2) requires that further consideration be given to a range of important considerations (discussed above), which seeks to balance the seriousness of the circumstances as well as the public interest in giving a direction or including a measure, against the public interest in upholding an individual’s liberty or other rights to ensure that appropriate protections are considered. As noted above, the Bill does not affect the application of any other Australian law that may be applicable in the context, for example the Disability Discrimination Act 1992.
Section 40 of the Biosecurity Act is intended to provide an additional mechanism for an accompanying person (such as a family member and guardian) to provide consent on behalf of a child or incapable person, when the child or person cannot provide consent on their own behalf. This mechanism would be subject to appropriate medical and other professional standards, including the usual practice of assessing the ability of a child or person to provide consent on their own behalf. This is given effect through the requirement in section 108R that appropriate medical and other professional standards apply in relation to examinations conducted under section 108N and for the provision of body samples under section 108P. The clinical expertise and training of the medical professional who is conducting the examination or requesting the body samples would ensure that procedures requiring consent are undertaken in a manner consistent with the rights of the child and persons with a disability. Further, an additional protection is provided in new section 108S, which stipulates that there be no use of force against an individual to require the individual to comply with a biosecurity measure. Where a chief human biosecurity officer or human biosecurity officer decides that it is not appropriate for an individual (including a child or incapable person) to undergo a certain procedure, alternative measures may be considered.
The proposed approach to consent to human biosecurity group directions for a child or incapable person would also promote internal consistency in the statutory framework of the Biosecurity Act concerning children and incapable persons. For example, the proposed approach for the human biosecurity group direction is consistent with the existing provision of consent under section 40 by an accompanying person for a child or incapable person in respect of a human biosecurity control order under Part 3 of Chapter 2 of the Biosecurity Act.
2.18 As stated in the initial analysis, the requirements that a direction can only be made if it is appropriate and adapted to the risk posed, where circumstances are sufficiently serious and only for so long as is necessary, and that it is no more restrictive or intrusive than is required in the circumstances, are all important safeguards that help to ensure the proportionality of the measure. There are also some important safeguards built into the new directions power, such as the requirement for consent to be given in certain circumstances, and that the direction can last for no longer than 12 hours in total. However, given the potential impact on a number of human rights, some questions arise as to whether the safeguards are sufficient in all circumstances.
2.19 In relation to the power for the direction for individuals to wear specified types of clothing or equipment, and the officer’s power to grant an individual an exemption from this requirement, the minister advised that it was not necessary or appropriate to require the officer to consider making an exemption if made aware of a disability that affected a person’s ability to comply with the direction. The minister advised that the proposed broad exemption power gives greater flexibility to appropriately respond in each individual case, and a requirement to consider the exemption once aware of a disability would be too prescriptive. The minister also noted that existing requirements in subsection 34(2) would require the officer to be satisfied of a number of considerations, including that the measure is appropriate and adapted to manage the relevant risk, and that the bill does not affect the application of any other Australian law such as the Disability Discrimination Act 1992. Further, the minister advised that these will be time-critical decision-making processes, with potentially many individuals to be assessed and contagion risks to be managed, and as such further mandatory decision-making considerations are not necessary. From this advice it would appear that, as a matter of law, the power exists for officers to grant an exemption for persons with disability from any requirement to wear certain clothing, and officers, in considering if the measure is appropriate and adapted, should give consideration to such matters. However, much will depend on whether this discretionary exemption power is exercised in practice, and the rights of persons with disabilities may be better protected were guidelines developed providing examples of when exemptions should be made on the basis of disability.
2.20 The direction may also require individuals to undergo a specified kind of examination relating to determining the presence in the individual of a listed human disease. The direction itself can specify the kind of examinations that require consent to the examination, and how that consent is to be given, but there is no legislative criteria as to the type of examinations that must require consent, nor a specific requirement that such examinations be undertaken with regard to the dignity, and where necessary, privacy of the person being examined. The minister advised that it is not considered necessary to include further specific legislative criteria, noting that the decision to require an examination will be informed by clinical knowledge and expertise, and this provision needs to be appropriately flexible to meet future needs of managing human health risks. The minister also noted again the existing requirements that officers must consider before making a direction, including considering that it be no more restrictive or intrusive than required, and be appropriate and adapted to managing the risk. The minister noted that in some circumstances the officer may decide that certain examinations would be inappropriate or too intrusive if there is no consent, in which case they can require that consent must be given and determine how consent can be given. Finally, the minister noted that as examinations must be carried out in accordance with the medical ‘standard of the day’, and as there may be many different types of medical professionals who may need to conduct examinations in different states and territories, it would be too cumbersome to list exactly which standards apply.
2.21 It may be that such procedures are conducted with appropriate regard to the need for consent for certain types of procedures and having regard to the dignity and privacy of the individual. However, it is noted that much of this would appear to rely on the officer exercising their judgement in the moment, and that standards may differ in different jurisdictions and according to different professions. It would appear therefore that some legislative guidance as to the kind of examinations that would require consent (for example, where an examination would require inserting something into a person’s nose, throat or other orifice) would provide useful guidance to officers and would assist with the proportionality of the measure.
2.22 The minister was also asked as to why there is no flexibility for officers to grant individual exemptions from the requirement for persons to undergo certain examinations. The minister advised that the bill already contains a number of mechanisms to allow individual circumstances to be taken into account in relation to an examination, and where an officer decides that it is not appropriate for an individual to undergo an examination, alternative measures may be considered, such as imposing a human biosecurity control order. The minister advised that the availability of existing control orders therefore creates a flexible mechanism to ‘carve out’ an individual from the application of a direction under these new powers. However, such a control order may be particularly coercive, with breach of the order subject to up to 5 years imprisonment or 300 penalty units ($66,600).[36] It is not clear that it would always be appropriate to subject an individual to a control order when the officer considers a person should not be subject to an examination because of their personal circumstances. It is therefore not clear why the officer could not be empowered to grant an exemption from the requirement for an examination (noting the power exists to grant an exemption from the requirement to wear certain clothing).
2.23 In relation to why the bill does not say how long body samples will be retained for, and when (and whether) they will be destroyed, the minister noted that the bill provides that the regulations must prescribe requirements for taking, storing, transporting, labelling and using body samples, and this ‘offers suitable flexibility for the administrative and procedural nature of such matters’, while still retaining suitable clarity and transparency. The minister also noted that the provision of body samples is already subject to the safeguard that the biosecurity measures must be carried out in a manner consistent with appropriate medical standards and other relevant professional standards, and some states and territories have their own legislation governing medical and professional standards, which extends to standards in relation to the destruction of body samples. In light of this the minister advised it is not considered necessary to set out the circumstances in which body samples must be destroyed, and this would create the potential for duplicative or conflicting standards. Further, the minister advised that the Biosecurity Act already sets out procedures for the use, record or disclosure of information, and to the extent that the body samples contain personal information, this will be dealt with as ‘protected information’ for the purposes of the Biosecurity Act.
2.24 However, it is noted that the retention of body samples for longer than is necessary for the purposes for which they were taken is likely to be an impermissible limitation on the right to privacy. In S and Marper v United Kingdom, the European Court of Human Rights explained that the ‘retention of cellular samples is particularly intrusive given the wealth of genetic and health information contained’, and the ‘mere retention and storing of personal data by public authorities, however obtained, are to be regarded as having direct impact on the private life interest of an individual concerned, irrespective of whether subsequent use is made of the data’.[37] It held that legislation must ensure that the retention of such data is relevant and not excessive in relation to the purposes for which it is stored.[38] While the minister noted some states and territories have standards regarding the destruction of body samples, this implies there are some that do not, and that the standards vary. As such, the lack of legislative guidance as to how long body samples obtained via an examination may be retained under these proposed powers risks this aspect of the measure being an arbitrary interference with the right to privacy. It is also noted that the existing privacy protections in the Biosecurity Act allow for the sharing of personal information to a wide range of people, including any employee of any government department if performing any functions or duties under the Biosecurity Act.[39] The breadth of the persons who may record, disclose or use such personal information suggests this may not operate as an adequate safeguard to protect the right to privacy, noting that body samples can contain sensitive personal information.
2.25 Finally, the bill provides that an accompanying person for a child or incapable person may give consent on behalf of the child or incapable person for the purposes of these new directions powers.[40] The minister advised that the general requirement for officers to consider a number of matters, including proportionality, when making a direction would provide for consideration of the rights of the child and rights of persons with disabilities. The minister advised that allowing an accompanying person to provide consent on behalf of a child or incapable person, when they cannot provide consent on their own behalf, would be subject to medical and other professional standards, including the usual practice of assessing the ability of a child or person to provide consent on their own behalf. The minister advised that where an officer decides that it is not appropriate for an individual (including a child or incapable person) to undergo a certain procedure, alternative measures may be considered (which were previously mentioned to be a human biosecurity control order).
2.26 As set out in the initial analysis, the Convention on the Rights of the Child provides that in all actions concerning children, the best interests of the child must be a primary consideration,[41] and when determining a child's best interests, the child’s views must be taken into account, consistent with their evolving capacities and taking into account their characteristics (pursuant to article 12 of the Convention).[42] The UN Committee on the Rights of the Child has explained that article 12 of the Convention has the effect that any decision that does not take into account the child’s views or does not give their views due weight according to their age and maturity, does not respect the possibility for the child or children to influence the determination of their best interests.[43]
2.27 Further, the Convention on the Rights of Persons with Disabilities requires health professionals to provide care of the same quality to persons with disabilities as to others including on the basis of free and informed consent.[44] The UN Committee on the Rights of Persons with Disabilities has said:
In conjunction with the right to legal capacity on an equal basis with others, States parties have an obligation not to permit substitute decision-makers to provide consent on behalf of persons with disabilities. All health and medical personnel should ensure appropriate consultation that directly engages the person with disabilities. They should also ensure, to the best of their ability, that assistants or support persons do not substitute or have undue influence over the decisions of persons with disabilities.[45]
2.28 It is not clear that the obligation to give due weight to the views of the child (according to their age and maturity), or the rights of persons with disabilities to give free and informed consent, has been fully taken into account in this legislation. In particular, it is not clear if an accompanying person gives consent, if this would override the wishes of a young person or person with disability (noting that the Biosecurity Act, as amended by this bill, states that once an accompanying person gives consent on behalf of the child or incapable person, it is taken to be consent by the child or incapable person). While the requirement that examinations and the taking of body samples be carried out in a manner consistent with appropriate medical or other relevant professional standards may operate to safeguard the rights of the child and of persons with disabilities, it is not clear this would provide adequate protection. At a minimum, guidelines would be required to guide the exercise of this power and to ensure due weight is given to the views of the child (according to their age and maturity), and to the rights of persons with disabilities to give free and informed consent.
2.29 The committee thanks the minister for this response. The committee notes that this bill seeks to introduce a new power for the making of a human biosecurity group direction, which would allow health officers to give directions to people on board aircraft or vessels in Australia if satisfied that one or more individuals have, or have been exposed to, a listed human disease. The direction, which could be in force for up to 12 hours (and remade), could require groups of individuals to provide personal information, specify where individuals must go for up to 12 hours (or longer if further directions are made), require certain clothing and equipment to be worn, and require individuals to undergo specified kinds of examinations.
2.30 As this measure is designed to prevent the spread of serious communicable diseases (such as COVID-19), the committee reiterates that it considers it promotes 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 that Australia takes steps to prevent, treat and control epidemic diseases.
2.31 The committee also considers that these potentially coercive powers also engage and limit a number of other rights, including the rights to liberty and freedom of movement, the right to a private life and the rights of the child and persons with disabilities. The committee considers the measure seeks to achieve the legitimate objective of protecting public health, and ensuring that the Commonwealth has suitable mechanisms to identify and control the spread of serious communicable diseases appears rationally connected to that objective.
2.32 The committee considers the bill, and the existing Biosecurity Act, contains significant protections that help to safeguard the proportionality of these measures. However, while there are significant protections in the legislation, some of these protections will depend on how the powers are exercised in practice. The committee therefore considers there is some risk, particularly in relation to the right to privacy, that these powers may not be exercised in a way that is ultimately compatible with this right. The committee is also concerned that there is no specific requirement that body samples collected using these powers be destroyed once they have fulfilled the purposes for which they were collected, noting that cellular samples can contain a wealth of genetic and health information. Finally, the committee is concerned that the ability to obtain consent from an accompanying person of a child or incapable person may not ensure due weight is given to the views of the child (according to their age and maturity), or to the rights of persons with disabilities to give free and informed consent.
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Suggested action
2.33 The committee considers that the proportionality of the measure may
be assisted were the bill amended to provide:
(a) that guidelines be developed in relation to the exercise of the
power in proposed section 108M that set out circumstances as to
when officers
should grant exemptions from the requirement to wear specified clothing or
equipment, on the basis of disability;
(b) non-exhaustive guidance as to the kind of examinations in proposed
section 108N that would require consent to be given before
they could be
undertaken (for example, where an examination would require inserting something
into a person’s nose, throat
or other orifice);
(c) flexibility for officers to grant individual exemptions from the
requirement in proposed section 108N for persons to undergo certain
examinations;
(d) that body samples collected pursuant to proposed section 108P must
be destroyed once they are no longer required for the purposes
for which they
were collected;
(e) guidelines be developed to explain officers’ obligations to
ensure due weight is given to the views of the child (according
to their age and
maturity), and to the rights of persons with disabilities to give free and
informed consent when seeking consent
for examinations and the taking of body
samples.
2.34 The committee recommends that the statement of compatibility with
human rights be updated to reflect the information which has
been provided by
the minister.
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2.35 The committee draws these human rights concerns to the attention of the minister and the Parliament.
[1] See https://www.aph.gov.au/Parliamentary_Business/Committees/Joint/Human_Rights/Scrutiny_reports.
[2] This entry can be cited as: Parliamentary Joint Committee on Human Rights, Biosecurity Amendment (Enhanced Risk Management) Bill 2021, Report 12 of 2021; [2021] AUPJCHR 118.
[3] Parliamentary Joint Committee on Human Rights, Report 11 of 2020 (16 September 2021), pp. 7‑17.
[4] Schedule 1, item 16, proposed section 108B.
[5] Schedule 1, item 16, proposed paragraph 108C(1)(f) and subsection 108F(3).
[6] Statement of compatibility, p. 15.
[7] Schedule 1, item 16, proposed section 108K. Note, existing section 635 of the Biosecurity Act 2015 is applied to this provision (see Schedule 1, item 18), so the privilege against self-incrimination is abrogated, although section 635 contains both a use and derivative use immunity.
[8] Schedule 1, item 16, proposed section 108L. See also explanatory memorandum at p. 22.
[9] Schedule 1, item 16, proposed section 108M.
[10] Schedule 1, item 16, proposed section 108N.
[11] Schedule 1, item 16, proposed section 108R.
[12] Schedule 1, item 16, proposed sections 108P and 108J. In relation to existing human biosecurity control orders, see Part 3 of the Biosecurity Act 2015.
[13] Schedule 1, item 16, proposed section 108R.
[14] Schedule 1, item 16, proposed subsection 108P(4).
[15] Schedule 1, item 16, proposed section 108S.
[16] Schedule 1, item 16, proposed section 108T.
[17] Schedule 1, item 12.
[18] Schedule 1, item 13, proposed amendments to section 40.
[19] Biosecurity Act 2015, section 9.
[20] International Covenant on Civil and Political Rights, articles 6 (right to life) and 12 (right to health).
[21] International Covenant on Civil and Political Rights, article 6.
[22] See UN Human Rights Committee, General Comment No. 36: Article 6 (Right to Life) (2019) [26].
[23] International Covenant on Economic, Social and Cultural Rights, article 12(2)(c).
[24] International Covenant on Civil and Political Rights, article 9.
[25] International Covenant on Civil and Political Rights, article 12; UN Human Rights Committee, General Comment 27: Article 12 (Freedom of movement) (1999) [5], [8].
[26] UN Human Rights Committee, General Comment No. 16: Article 17 (1988) [3]-[4].
[27] Convention on the Rights of the Child. See also, UN Human Rights Committee, General Comment No. 17: Article 24 (1989) [1].
[28] Convention on the Rights of the Child, article 3(1).
[29] UN Committee on the Rights of Children, General Comment 14 on the right of the child to have his or her best interest taken as primary consideration (2013).
[30] Convention on the Rights of the Child, article 12.
[31] Convention on the Rights of Persons with Disability, article 12.
[32] Convention on the Rights of Persons with Disability, article 4(1)(c).
[33] Committee on the Rights of Persons with Disabilities, General comment No. 1 – Article 12: Equal recognition before the law (2014) [40]–[41].
[34] Committee on the Rights of Persons with Disabilities, General comment No. 1 – Article 12: Equal recognition before the law (2014) [15]–[16], [21]. ‘“Support” is a broad term that encompasses both informal and formal support arrangements, of varying types and intensity. For example, persons with disabilities may choose one or more trusted support persons to assist them in exercising their legal capacity for certain types of decisions, or may call on other forms of support, such as peer support, advocacy (including self-advocacy support), or assistance with communication’ and ‘[w]here, after significant efforts have been made, it is not practicable to determine the will and preferences of an individual, the “best interpretation of will and preferences” must replace the “best interests” determinations’.
[35] The minister's response to the committee's inquiries was received on 1 October 2021. 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.
[36] Biosecurity Act 2015, section 107.
[37] See S and Marper v United Kingdom, European Court of Human Rights, Application Nos. 30562/04 and 30566/04 (2008) [120] and [121].
[38] See S and Marper v United Kingdom, European Court of Human Rights, Application Nos. 30562/04 and 30566/04 (2008) [103].
[39] Biosecurity Act 2015, section 580.
[40] Schedule 1, item 13, proposed amendments to section 40 of the Biosecurity Act 2015.
[41] Convention on the Rights of the Child, article 3.
[42] UN Committee on the Rights of the Child, General Comment No. 14 on the right of the child to have his or her best interests taken as a primary consideration (2013) [43]. See also, General Comment No. 20 on the implementation of the rights of the child during adolescence (2016) [22].
[43] UN Committee on the Rights of the Child, General comment 14 on the right of the child to have his or her best interests taken as a primary consideration (2013) [53].
[44] Convention on the Rights of Persons with Disabilities, article 25(d).
[45] Committee on the Rights of Persons with Disabilities, General comment No. 1 – Article 12: Equal recognition before the law (2014) [41].
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