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Australian Parliamentary Joint Committee on Human Rights |
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Purpose
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The Biosecurity (Human Biosecurity Emergency) (Human Coronavirus with
Pandemic Potential) Variation (Extension No. 2) Instrument 2021
extended the human biosecurity emergency period until 17 September
2021
The Biosecurity (Human Biosecurity Emergency) (Human Coronavirus with
Pandemic Potential) Variation (Extension No. 3) Instrument 2021
extends the human biosecurity emergency period for a further three months until
17 December 2021
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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; equality and non-discrimination;
privacy
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2.132 The committee requested a further response from the minister in relation to the Biosecurity (Human Biosecurity Emergency) (Human Coronavirus with Pandemic Potential) Variation (Extension No. 2) Instrument 2021 in Report 9 of 2021.[2]
2.133 On 18 March 2020 the Governor-General declared that a human biosecurity emergency exists regarding the listed human disease 'human coronavirus with pandemic potential', namely COVID-19.[3] Sections 475 and 476 of the Biosecurity Act 2015 (Biosecurity Act) allow the Governor-General to make, and extend, the human biosecurity emergency period for a period of up to three months if the Minister for Health is satisfied of certain criteria. During a human biosecurity emergency period, sections 477 and 478 of the Biosecurity Act allow the Minister for Health to determine emergency requirements, or give directions, that he or she is satisfied are necessary to prevent or control the entry, emergence, establishment or spread of COVID-19 in Australian territory or part of Australian territory. A person who fails to comply with an emergency requirement or direction may commit a criminal offence, punishable by imprisonment for a maximum of five years, or 300 penalty units, or both.
2.134 The Biosecurity (Human Biosecurity Emergency) (Human Coronavirus with Pandemic Potential) Variation (Extension No. 2) Instrument 2021 extended the human biosecurity emergency period until 17 September 2021. The Biosecurity (Human Biosecurity Emergency) (Human Coronavirus with Pandemic Potential) Variation (Extension No. 3) Instrument 2021 extends the human biosecurity emergency period for a further three months until 17 December 2021. The effect of these instruments is that any determinations made under section 477 of the Biosecurity Act that are still in effect will continue to apply for the duration of the human biosecurity emergency period (unless revoked earlier).[4] These include:
• mandatory pre-departure COVID-19 testing and mask wearing for passengers and aircrew travelling on an international flight to Australia;[5]
• restrictions on cruise ships entering Australian territory or ports;[6]
• a ban on Australian citizens or permanent residents leaving Australia as a passenger on an outgoing aircraft or vessel unless otherwise exempted;[7] and
• restrictions on the trade of retail outlets at international airports.[8]
2.135 The extension of the human biosecurity emergency period, and the consequent extension of the mandatory pre-departure testing and mask wearing, restrictions on cruise ships, overseas travel ban, and restrictions on the trade of retail outlets at international airports, for a further three months, engages a number of human rights. As the measures are intended to prevent the spread of COVID-19, which has the ability to cause high levels of morbidity and mortality, they may promote the rights to life and health.[9] The right to life requires States parties to take positive measures to protect life.[10] 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.[11] The right to health requires that States parties shall take steps to prevent, treat and control epidemic diseases.[12] With respect to the COVID-19 pandemic specifically, the UN Human Rights Committee has expressed the view that 'States parties must take effective measures to protect the right to life and health of all individuals within their territory and all those subject to their jurisdiction'.[13]
2.136 However, extending the biosecurity emergency period, and thereby continuing to enliven the various powers under the Biosecurity Act and extending existing determinations, is likely to engage and limit a number of rights, including the rights to freedom of movement, equality and non-discrimination and the right to a private life. The right to freedom of movement encompasses the right to move freely within a country, including all parts of federal States, and the right to leave any country, including a person's own country.[14] It encompasses both the legal right and practical ability to travel within and leave a country and includes the right to obtain the necessary travel documents to realise this right.[15] The freedom to leave a country may not depend on any specific purpose or the period of time the individual chooses to stay outside the country, meaning that travelling abroad and permanent emigration are both protected.[16] Insofar as the effect of the instruments is the continued prevention of Australian citizens and permanent residents from travelling outside Australia (unless an exemption applies) and cruise ships from entering Australian territory or Australian ports (unless an exemption applies), the right to move freely within a country and the right to leave the country, including for travelling abroad, is limited.
2.137 The application of the travel ban to Australian citizens and permanent residents may limit the right to equality and non-discrimination, as the measure treats some people differently from others on the basis of nationality. The right to equality and non-discrimination provides that everyone is entitled to enjoy their rights without discrimination of any kind, including on the grounds of nationality.[17] The measures may also limit the right to a private life as the restriction of movement and trade involves interference with a person’s private life. The right to privacy prohibits arbitrary and unlawful interferences with an individual's privacy, family, correspondence or home.[18] This includes a requirement that the state does not arbitrarily interfere with a person's private and home life.[19]
2.138 These rights may be subject to permissible limitations where the limitation pursues a legitimate objective, is rationally connected to (that is, effective to achieve) that objective and is proportionate to that objective. In the context of the COVID-19 pandemic, the UN Human Rights Committee has indicated that implementing emergency and temporary measures may be necessary to protect the rights to life and health. It acknowledged that such 'measures may, in certain circumstances, result in restrictions on the enjoyment of individual rights guaranteed by the Covenant'.[20] Where such restrictions are necessary, they should be 'only to the extent strictly required by the exigencies of the public health situation' and pursue the 'predominant objective' of restoring 'a state of normalcy'.[21] The sanctions imposed in connection with any emergency and temporary measures must also be proportionate in nature.[22] Noting the UN Human Rights Committee's advice and the evolving situation of the COVID-19 pandemic, it is important to periodically assess the necessity and proportionality of each extension of the human biosecurity emergency period and the consequent extension of the relevant emergency powers. Regular assessment of emergency measures that restrict rights will help to ensure that they are only to the extent strictly necessary and pursue the predominant objective of restoring a state of normalcy.
2.139 In order to assess the compatibility of this instrument with international human rights law, further information is required as to:
(a) whether there are effective safeguards or controls over each of these measures, including the possibility of monitoring and access to review;
(b) in relation to the exemption process under the Biosecurity (Human Biosecurity Emergency) (Human Coronavirus with Pandemic Potential) (Overseas Travel Ban Emergency Requirements) Determination 2020, since the outward travel ban was imposed:
(i) how many applications for exemptions have been made and of those, how many have been granted or denied;
(ii) what are the main reasons why exemption applications have been granted and the main reasons why exemptions have been denied;
(iii) what are the top 20 countries where exemptions have been granted for travel, and what are the top 20 countries where exemptions have been denied for travel;
(iv) what is the basis for not applying the 'exceptional circumstances' individual exemption criteria to Papua New Guinea and India, and has any assessment been made as to whether this will have a disproportionate effect on persons on the basis of nationality;
(v) what controls are there over the decisions made by departmental officers to grant or not grant exemptions, and are there any internal review processes over such decisions; and
(c) whether there are any other less rights restrictive ways to achieve the stated objectives.
2.140 These measures which are designed to prevent the spread of COVID-19, promote the rights to life and health, but may also limit the right to freedom of movement, equality and non-discrimination and the right to a private life. As there was no statement of compatibility accompanying this instrument, questions remained as to whether all of the measures were reasonable, necessary and proportionate, and so the committee sought the minister's advice as to the matters set out at paragraph [2.139].
2.141 The full initial analysis is set out in Report 8 of 2021.
2.142 The minister advised:
Governor-General's extension to the human biosecurity emergency period
The extension of the human biosecurity period is necessary to ensure the Minister for Health can continue to exercise the emergency powers under the Biosecurity Act 2015 (Act) to determine requirements or give directions necessary to prevent or control the entry, emergence, establishment or spread of COVID-19 in Australia.
The committee has previously noted that if the temporary measures were to be extended multiple times, the cumulative time period in which the measures could be in effect could be significant. The Governor-General agreed to extend the human biosecurity emergency period for a further three months until 17 September 2021, a decision that was informed by specialist medical and epidemiological advice provided by the Australian Health Protection Principal Committee (AHPPC) and the Chief Medical Officer. The AHPPC advised that the international COVID-19 situation continues to pose an unacceptable risk to public health and therefore the extension of the emergency period is an appropriate response to that risk to ensure the protection of the right to life and the right to health.
Determinations made under section 477 of the Act
In your report you note that it is necessary to periodically assess the necessity and proportionality of each extension of the human biosecurity emergency period and relevant emergency powers. Before determining an emergency requirement, I must be satisfied under section 477(4) of the Act the requirement is likely to be effective in, or to contribute to, achieving the purpose for which it is to be determined, the requirement is appropriate and adapted to achieve the purpose for which it is to be determined, the requirement is no more restrictive or intrusive than is required in the circumstances, the manner in which the requirement is to be applied is no more restrictive or intrusive than is required in the circumstances and the period during which the requirement is to apply is only as long as is necessary.
These tests set by the legislation intrinsically ensure that each requirement is directed to a health need and is a necessary, appropriate, adapted and proportionate response to that health need. I have reviewed these tests and each of the requirements every time that I have recommend an extension of the emergency period.
2.143 The committee noted with some disappointment that the minister's response did not answer the committee's specific questions, and sought again a response to the matters set out at paragraphs (a) and (b) in [2.139] above.
2.144 The full initial analysis is set out in Report 9 of 2021.
2.145 The minister advised:
The Biosecurity (Human Biosecurity Emergency) (Human Coronavirus with Pandemic Potential) Declaration 2020 (Declaration) commenced on 18 March 2020 and has been extended six times, with the most recent extending the Declaration until 17 December 2021.
This is in a context where the COVID-19 situation continues to escalate both globally and within the Australian community, particularly as new variants emerge. As at 3 September 2021, there have been over 218,960,000 cases of COVID-19 reported globally, including approximately 4,550,000 deaths.
In Australia, as at 1200 hrs, 3 September 2021, there have been 58,210 cases of COVID-19 reported, including 1,032 deaths. Of particular concern is the New South Wales Delta variant outbreak. New South Wales, Victoria and the Australian Capital Territory are in lockdown to help reduce the number of daily infections.
Safeguards and controls for the use [of] human biosecurity emergency powers
Chapter 8 of the Biosecurity Act 2015 (Act) provides that the Governor-General may declare that a human biosecurity emergency exists following a recommendation by me as the relevant Minister for Health and Aged Care. This Declaration may be extended for a period of up to three months following a similar recommendation.
With this Declaration in place, I am then able to make any necessary emergency determinations to support the implementation of urgent public health measures to address COVID-19. My recommendations and decisions must be informed by public health advice, which is provided to me by the Chief Medical Officer (CMO), and/or the Australian Health Protection Principal Committee (AHPPC).
Recommendations to declare or extend a human biosecurity emergency
Before I can make a recommendation to the Governor-General, I must first be satisfied of the following matters:
• a listed human disease is posing a serious and immediate threat, or is causing harm, to human health on a nationally significant scale
• the Declaration is necessary to prevent or control:
- the entry of the listed human disease into Australian territory or part of Australian territory
- the emergence, establishment or spread of the listed human disease in Australian territory or part of Australian territory.
These considerations provide a number of safeguards and controls on the use of emergency powers. For example, a decision must be in relation to a "listed human disease" which is a disease that may be communicable and cause significant harm to human health. A listed human disease must be determined in writing by the Director of Human Biosecurity (who is the CMO) in consultation with the Chief Health Officer for each state and territory and with the Director of Biosecurity (who is the Secretary of the Department of Agriculture, Water and the Environment).
A further requirement for recommending a human biosecurity emergency declaration is that I must also consider the period that it is necessary to prevent or control the entry, or the emergence, establishment or spread, of the listed human disease. I also note declarations are limited and must not be longer than three months.
Exemptions process for the Overseas Travel Ban Determination
The Biosecurity (Human Biosecurity Emergency) (Human Coronavirus with Pandemic Potential) (Overseas Travel Ban Emergency Requirements) Determination 2020 (Overseas Travel Ban Determination) restricts Australian citizens and permanent residents from travelling outside of Australia by air or sea, subject to limited exceptions.
I have consulted with the Department of Home Affairs, who has advised me on the following responses.
Applications for exemptions
The number of applications for travel exemptions that have been granted, between the introduction of the travel ban on 25 March 2020 and 31 July 2021 is as follows:
• 397,905 requests[25] for an outwards travel exemption were received[26]
• 189,336 requests for an outwards travel exemption were approved
• 109,789 requests for an outwards travel exemption were refused.
Reasons for exemptions
The categories for travel exemption requests by reporting category is detailed in the following table, which was for the period between 25 March 202 [sic] and 31 July 2021.
Category |
Approved |
Refused |
Response to the COVID-19 outbreak |
837 |
207 |
Critical industries and businesses |
26,470 |
9,356 |
Urgent medical treatment |
1,366 |
1,445 |
Travelling overseas for a compelling reason for at least 3 months |
95,996 |
31,235 |
Urgent and unavoidable personal business |
14,066 |
8,754 |
Compassionate and compelling grounds |
48,039 |
58,690 |
National interest |
2,562 |
102 |
Total |
189,336 |
109,789 |
Note that the sum of approved and refused requests may not equate to the total number of requests received in the same period, as requests may otherwise by finalised outside of the reporting period.
Countries with approved exemptions
Between 1 August 2020 and 31 July 2021, the following destination countries received the most approvals for exemption requests under the Overseas Travel Ban Determination:
1. United Kingdom - 17,003 11. Germany - 3,201
2. China- 16,538 12. Indonesia - 2,806
3. United States of America - 15,520 13. Hong Kong - 2,751
4. India- 12,956 14. Ireland - 2,742
5. Pakistan - 5,893 15. Thailand - 2,634
6. New Zealand- 5,345 16. France - 2,583
7. Singapore-4,575 17. Lebanon - 2,577
8. Canada-4,155 18. United Arab Emirates - 2,397
9. Papua New Guinea-4,144 19. Republic of Korea - 2,140
10. Japan-4,129 20. Malaysia - 2,007
This data includes individuals who may have submitted more than one request, and the countries are listed as declared by the applicant on the travel exemption request.
Papua New Guinea and India
Australia has expressed concerns about the slow rate of the vaccination rollout in Papua New Guinea, as well as the potentially catastrophic impact of the Delta variant. In response, Australia has implemented policy settings to help manage the impact of potential transmission of COVID-19 as a result of travel between the two countries.
The Biosecurity (Human Biosecurity Emergency) (human Coronavirus with Pandemic Potential) (Emergency Requirements-High Risk Country Travel Pause) Determination 2021 (High Risk Country Travel Pause Determination) commenced on 3 May 2021 and remained in force until it repealed itself at the start of 15 May 2021. At the time, there was approximately 400,000 new cases of COVID-19 and almost 4,000 deaths reported on one day in India. As a result, overseas travellers who had acquired a COVID-19 infection in India and were returning to Australia were putting pressure on Australia's public health system. The temporary pause was used to allow case numbers in quarantine to stabilise and ensure the integrity of the quarantine system.
Controls on decision-making and access to review
Quality assurance reviews of decisions are regularly undertaken to ensure travel exemptions are in line with policy guidelines. The travel exemption program includes senior officers who review feedback from individuals dissatisfied with the travel exemption decision making process through the Global Feedback Unit. Individuals who have had a decision denied may also request an internal review.
Further, I note that public scrutiny of the Government's response to COVID-19, including implementation and management of the travel exemptions program, remains ongoing through regular Senate Estimates and Senate Select Committee hearings on Australian Government's response to the COVID-19 pandemic.
2.146 It is noted that since the preliminary analysis, which considered the extension of the human biosecurity emergency period until 17 September 2021, the human biosecurity emergency period has subsequently been extended for a further three months until 17 December 2021. Noting the UN Human Rights Committee's advice that public health measures that restrict rights should be 'only to the extent strictly required by the exigencies of the public health situation'[27] and in light of the evolving situation of the COVID-19 pandemic, it is important to periodically assess the necessity and proportionality of each extension of the human biosecurity emergency period and the consequent extension of the relevant emergency powers.
2.147 In general terms, the measures appear to pursue the legitimate objective of controlling and preventing the entry and spread of COVID-19 in Australia, and insofar as the measures seek to protect public health and the rights and freedoms of others, they appear to be rationally connected to that objective. The key question is whether the measures are proportionate. In assessing proportionality, relevant considerations include the extent of any interference with rights; whether the proposed limitations are sufficiently circumscribed and accompanied by adequate safeguards, including the possibility of monitoring and oversight; and whether there are other less rights restrictive ways to achieve the objective being pursued.
2.148 The temporary nature of these measures is relevant in considering the extent of any interference with rights.[28] While each extension of the human biosecurity emergency period only lasts for three months, it may be extended multiple times. Since it was first declared on 18 March 2020, the minister noted that the human biosecurity emergency period has been extended six times, with the most recent extension until 17 December 2021. As previously noted, where temporary measures are extended multiple times, the cumulative time period in which the measures could be in effect may be significant.[29] There is a risk that the longer the human biosecurity emergency period is extended, the less likely it is to be considered a temporary measure and the more likely it is to constitute a significant interference with rights.
2.149 As to the existence of safeguards and controls over the measures, the minister stated that before recommending the extension of a human biosecurity emergency period, he must be satisfied that a listed human disease is posing a serious and imminent threat, or is causing harm, to human health on a nationally significant scale; and the declaration is necessary to prevent or control the entry, emergence, establishment or spread of the disease in Australian territory. Before making an emergency determination, the minister must also be satisfied that the requirement will likely be effective, and appropriate and adapted, to achieve its purpose; the requirement and the manner in which it is to be applied is no more restrictive or intrusive than is required in the circumstances; and the period during which the requirement is to apply is only as long as is necessary.[30] To the extent that these requirements help to ensure that the emergency powers are only used to the extent strictly necessary, they would likely assist with the proportionality of the measures.
2.150 Another key safeguard is the availability of exemptions in relation to the overseas travel ban determination.[31] Travel exemptions are available to certain persons, such as an aircraft or vessel crew member, and may apply to other persons in exceptional circumstances, such as where an Australian citizen or permanent resident provides a compelling reason for needing to leave Australia.[32] The Outward Travel Restrictions Operation Directive (the Directive) provides some guidance as to how the exemption process may operate in practice.[33]
2.151 Noting that the effectiveness of this safeguard will depend on how the exemptions process operates in practice, it is relevant to consider the number of applications for exemptions that have been made and of those, how many have been granted or denied, as well as the reasons for granting or denying exemptions. In this regard, the minister advised that between 25 March 2020 and 31 July 2021, 397,905 applications for an outwards travel exemption were received,[34] and 189,336 requests were approved (approximately 63 per cent) and 109,789 requests were refused (approximately 37 per cent).[35] The minister indicated that the most common reasons for granting a travel exemption were travelling overseas for a compelling reason for at least three months; critical industries and businesses; and compassionate and compelling grounds—although it is noted in relation to the latter category that more exemption applications were refused than approved on this ground.[36] The minister further advised that between 1 August 2020 and 31 July 2021, the destination countries that have received the most approvals for exemption requests include the United Kingdom, China, the United States of America and India. However, it is not clear what the approval rate is for each destination country as a proportion of the total number of applications made. While the preliminary analysis noted that the destination country appears to be a relevant consideration in the granting or refusal of an exemption, evidenced by the 'exceptional circumstances' exemption not applying to individuals seeking to travel to Papua New Guinea (PNG) or India, the most recent version of the Directive does not specify that exemptions do not apply to travel to these countries.[37] The minister stated that policy settings are used to manage the potential transmission of COVID-19 as a result of travel between Australia and PNG, although the exact policy settings were not specified. In relation to India, the minister noted that the previous ban on travel between India and Australia repealed itself on 15 May 2021.[38] While it appears that exemptions now apply to all destination countries, without further information as to the approval rate for each country, it remains unclear what bearing the destination country has on whether an application for a travel exemption is more or less likely to be approved.
2.152 Noting that approximately 63 per cent of exemption applications were approved in the reporting period, indicating that there is a reasonable likelihood that an exemption may be granted to an individual seeking to travel outside Australia, the measures appear to contain flexibility to enable the circumstances of each individual case to be considered, which assists with the proportionality of the measures. However, questions remain as to whether the discretion to grant an exemption is sufficiently circumscribed and exercised in a manner that is compatible with human rights; whether there are sufficient controls over the measure, including the possibility of monitoring and oversight; and whether there are other less rights restrictive ways to achieve the objective being pursued.
2.153 As noted in the preliminary analysis, there appears to be a broad discretion conferred on authorised officers of the Australian Border Force and the Department of Home Affairs in relation to approving or refusing exemption requests. In this regard, the minister advised that quality assurance reviews of decisions are regularly undertaken to ensure travel exemptions are in line with policy guidelines. The minister also noted that through the Global Feedback Unit, senior officers review feedback from individuals who are dissatisfied with the travel exemption decision making process. The minister further noted that individuals who have been denied an exemption may request an internal review. While the availability of internal review assists somewhat with the proportionality of the measures, without independent external review, this may not in itself be a sufficient safeguard.
2.154 International human rights law jurisprudence states that laws conferring discretionary powers on the executive must indicate with sufficient clarity the scope of any such power or discretion conferred on competent authorities and the manner of its exercise.[39] This is because, without sufficient safeguards, broad powers may be exercised in such a way as to be incompatible with human rights. There may be a risk that given the breadth of discretion conferred on authorised officers, noting that decisions to grant an exemption can be made by junior officers (APS3 officers and above), and in the absence of external review or other sufficient controls and oversight over the measure, the exemption application and approval process may be inconsistently applied.[40] For example, it is up to the decision maker to determine the appropriate level of evidence required, raising concerns that different evidentiary standards may be applied in different cases.[41] For these reasons, concerns remain that the measure may not be accompanied by adequate safeguards, including the availability of external review and oversight. It is also unclear whether there are other less rights restrictive ways to achieve the objective being pursued (such as vaccination and quarantine requirements). This is particularly important in the context of restrictions on the right to freedom of movement, noting the UN Human Rights Committee's advice that such restrictions cannot merely serve permissible purposes but must also be proportionate and the least intrusive measure to achieve the objective.[42]
2.155 In conclusion, while the measures appear to pursue the legitimate objective of controlling and preventing the entry and spread of COVID-19 in Australia, questions remain as to whether the extension of the biosecurity period is proportionate. It is noted that there are safeguards required to be met before the minister can make an emergency determination, including that the minister be satisfied that the determination will likely be effective, and appropriate and adapted, to achieve its purpose; be no more restrictive or intrusive than is required in the circumstances; and applied only as long as is necessary. This requirement, as well as the temporary nature of each extension, assists with the proportionality of the measures. In particular, it may help to ensure that each extension of the human biosecurity emergency period is proportionate and that the emergency powers are only used to the extent strictly necessary.
2.156 However, noting that the human biosecurity emergency period has been extended six times lasting for almost two years, most recently until 17 December 2021, there is a risk that the longer this emergency period is extended, and the consequent emergency powers continue to be enlivened, the less likely it is to be considered a temporary measure and the more likely it is to constitute a significant interference with rights. This is of particular concern in relation to the overseas travel ban due to the considerable extent to which this interferes with rights, particularly the right to freedom of movement. It is therefore important that this measure is accompanied by sufficient safeguards to ensure it is a proportionate limit on rights. In this regard, the availability of exemptions from the travel ban is an important safeguard. However, there remain concerns as to the adequacy of this safeguard in practice, noting that there is no access to external review; the discretion conferred on authorised officers is broad and not subject to external oversight; and it is not clear that the travel ban represents the least rights restrictive approach to achieving the stated objective. It is also noted that individuals seeking an exemption on compassionate and compelling grounds were more likely to be refused than approved. As such, extending the biosecurity period until 17 December 2021, with the consequent extension of the travel ban, may risk disproportionately limiting the rights to freedom of movement and a private life for those denied the right to leave Australia. Further, if the measures disproportionately affect certain nationalities, they may impermissibly limit the right to equality and non-discrimination.
2.157 The committee thanks the minister for this response. The committee notes that the instruments extended the human biosecurity emergency period for a further three months each, most recently until 17 December 2021. Consequently, the following determinations will continue to operate until the end of the human biosecurity emergency period:
• mandatory pre-departure COVID-19 testing and mask wearing for passengers and aircrew travelling on an international flight to Australia;
• restrictions on cruise ships entering Australian territory or ports;
• a ban on Australian citizens or permanent residents leaving Australia as a passenger on an outgoing aircraft or vessel unless otherwise exempted; and
• restrictions on the trade of retail outlets at international airports.
2.158 As the committee has previously stated when these determinations were originally introduced, these measures, which are designed to prevent the spread of COVID-19, promote 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 Australia takes steps to prevent, treat and control epidemic diseases. However, the committee notes that these measures, in particular the ban on the outward travel of Australian citizens and residents, may also limit the right to freedom of movement, equality and non-discrimination and the right to a private life. In light of the unprecedented nature of the COVID-19 pandemic and the necessity for States to confront the threat of widespread contagion with emergency and temporary measures, the committee acknowledges that such measures may, in certain circumstances, restrict human rights. These rights may be subject to permissible limitations if they are shown to be reasonable, necessary and proportionate.
2.159 The committee considers that while the extension of the biosecurity period pursues the legitimate objective of controlling and preventing the entry and spread of COVID-19, questions remain as to whether all aspects of this are proportionate. The committee notes that the measures are time limited and accompanied by some important safeguards. In particular, before making an emergency determination, the minister must be satisfied that the determination will likely be effective, and appropriate and adapted, to achieve its purpose; be no more restrictive or intrusive than is required in the circumstances; and applied only as long as is necessary. This requirement, as well as the temporary nature of each extension, would assist with the proportionality of the measures.
2.160 However, the committee notes that as the human biosecurity emergency period has been extended six times for almost two years, there is a risk that the longer this emergency period is extended, and the consequent emergency powers continue to be enlivened, the less likely it is to be considered a temporary measure and the more likely it is to constitute a significant interference with rights. Noting the considerable extent to which the overseas travel ban interferes with rights, the committee notes that it is particularly important that this measure is accompanied by sufficient safeguards. While the availability of exemptions to the overseas travel ban is an important safeguard, it is unclear whether it would be sufficient in all circumstances, noting that there is no access to external review; the discretion conferred on authorised officers is broad and not subject to external oversight; and it is not clear that the travel ban represents the least rights restrictive approach to achieving the stated objective. As such, the committee considers that extending the biosecurity period until 17 December 2021, with the consequent extension of the travel ban, may risk disproportionately limiting the rights to freedom of movement and a private life for those denied the right to leave Australia. Further, if the measures disproportionately affect certain nationalities, they may impermissibly limit the right to equality and non-discrimination.
2.161 However, the committee welcomes the government's announcement that the overseas travel ban will be lifted in the near future, which is likely to address many of the human rights concerns raised above.
2.162 The committee draws these human rights concerns to the attention of the minister and the Parliament.
[1] This entry can be cited as: Parliamentary Joint Committee on Human Rights, Biosecurity (Human Biosecurity Emergency) (Human Coronavirus with Pandemic Potential) Variation (Extension No. 2) Instrument 2021 [F2021L00727] and Biosecurity (Human Biosecurity Emergency) (Human Coronavirus with Pandemic Potential) Variation (Extension No. 3) Instrument 2021 [F2021L01232], Report 12 of 2021; [2021] AUPJCHR 123.
[2] Parliamentary Joint Committee on Human Rights, Report 9 of 2021 (4 August 2021), pp. 2-10.
[3] The Biosecurity (Human Biosecurity Emergency) (Human Coronavirus with Pandemic Potential) Declaration 2020 [F2020L00266] was made pursuant to section 475 of the Biosecurity Act 2015.
[4] Biosecurity (Human Biosecurity Emergency) (Human Coronavirus with Pandemic Potential) Variation (Extension No. 2) Instrument 2021 [F2021L00727], explanatory statement, p. 3; Biosecurity (Human Biosecurity Emergency) (Human Coronavirus with Pandemic Potential) Variation (Extension No. 3) Instrument 2021 [F2021L01232], explanatory statement, p. 3.
[5] Biosecurity (Human Biosecurity Emergency) (Human Coronavirus with Pandemic Potential) (Emergency Requirements – Incoming International Flights) Determination 2021 [F2021L00061].
[6] Biosecurity (Human Biosecurity Emergency) (Human Coronavirus with Pandemic Potential) (Emergency Requirements for Cruise Ships) Determination 2020 [F2020C00809].
[7] Biosecurity (Human Biosecurity Emergency) (Human Coronavirus with Pandemic Potential) (Overseas Travel Ban Emergency Requirements) Determination 2020 [F2021C00358].
[8] Biosecurity (Human Biosecurity Emergency) (Human Coronavirus with Pandemic Potential) (Emergency Requirements—Retail Outlets at International Airports) Determination 2020 [F2020C00725].
[9] International Covenant on Civil and Political Rights, articles 6 (right to life) and 12 (right to health).
[10] International Covenant on Civil and Political Rights, article 6.
[11] See United Nations Human Rights Committee, General Comment No. 36: Article 6 (Right to Life) (2019) [26].
[12] International Covenant on Economic, Social and Cultural Rights, article 12(2)(c).
[13] United Nations Human Rights Committee, Statement on derogations from the Covenant in connection with the COVID-19 pandemic (2020) [2].
[14] International Covenant on Civil and Political Rights, article 12; United Nations Human Rights Committee, General Comment 27: Article 12 (Freedom of movement) (1999) [5], [8].
[15] United Nations Human Rights Committee, General Comment 27: Article 12 (Freedom of movement) (1999) [9].
[16] United Nations Human Rights Committee, General Comment 27: Article 12 (Freedom of movement) (1999) [8].
[17] International Covenant on Civil and Political Rights, articles 2 and 26.
[18] United Nations Human Rights Committee, General Comment No. 16: Article 17 (1988) [3]-[4].
[19] The United Nations Human Rights Committee further explains that this right is required to be guaranteed against all such interferences and attacks whether they emanate from State authorities or from natural or legal persons: General Comment No. 16: Article 17 (1988).
[20] United Nations Human Rights Committee, Statement on derogations from the Covenant in connection with the COVID-19 pandemic (2020) [2].
[21] United Nations Human Rights Committee, Statement on derogations from the Covenant in connection with the COVID-19 pandemic (2020) [2(b)].
[22] United Nations Human Rights Committee, Statement on derogations from the Covenant in connection with the COVID-19 pandemic (2020) [2(b)].
[23] The minister's response to the committee's inquiries was received on 19 July 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.
[24] 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.
[25] Requests prior to 1 August 2020 may include more than one person, and individuals may have submitted more than one request.
[26] The sum of approved and refused requests may not equate to the total number of requests received in the same period, as requests may be otherwise finalised (persons found to meet an already exempt category, withdrawn requests; or requests that did not contain sufficient information for referral to a decision maker); or received or finalised outside the reporting period.
[27] United Nations Human Rights Committee, Statement on derogations from the Covenant in connection with the COVID-19 pandemic (2020) [2(b)].
[28] The United Nations Human Rights Committee has acknowledged in the context of the COVID‑19 pandemic that 'States parties confronting the threat of widespread contagion may, on a temporary basis, resort to exceptional emergency powers and invoke their right to derogation from the Covenant under article 4 provided that it is required to protect the life of the nation': Statement on derogations from the Covenant in connection with the COVID-19 pandemic (2020) [2].
[29] See, Parliamentary Joint Committee on Human Rights, Report 12 of 2020 (15 October 2020) pp. 6–13; Report 14 of 2020 (26 November 2020) pp. 71–81.
[30] Biosecurity Act 2015, subsection 477(4).
[31] Biosecurity (Human Biosecurity Emergency) (Human Coronavirus with Pandemic Potential) (Overseas Travel Ban Emergency Requirements) Determination 2020 [F2021C00358].
[32] Biosecurity (Human Biosecurity Emergency) (Human Coronavirus with Pandemic Potential) (Overseas Travel Ban Emergency Requirements) Determination 2020 [F2021C00358], sections 6 and 7. See also Biosecurity (Human Coronavirus with Pandemic Potential) Amendment (No. 1) Determination 2021 [F2021L01068], which removes an automatic exemption from this overseas travel ban for Australian citizens and permanent residents ordinarily resident in a country other than Australia. The Parliamentary Joint Committee on Human Rights considered this legislative instrument in Report 10 (25 August 2021) pp. 36–41.
[33] Department of Home Affairs, Outward Travel Restrictions Operation Directive, V.9, https://www.homeaffairs.gov.au/covid-19/Documents/outward-travel-restrictions-operation-directive.pdf (accessed 8 October 2021). See also Department of Home Affairs, Travel restrictions and exemptions (5 October 2021), https://covid19.homeaffairs.gov.au/travel-restrictions (accessed 8 October 2021). An overview of the Directive is set out in Parliamentary Joint Committee on Human Rights, Report 8 of 2021 (23 June 2021) pp. 8–10.
[34] The minister noted that applications may include more than one person and individuals may have submitted more than one application. The minister further noted that the total number of approved and refused requests may not equate to the total number of requests received in the same period, as requests may be otherwise finalised (persons found to meet an already exempt category, withdrawn requests; or requests that did not contain sufficient information for referral to a decision maker); or received or finalised outside the reporting period.
[35] The minister noted that the sum of approved and refused requests may not equate to the total number of requests received in the same period, as requests may otherwise by finalised outside of the reporting period. As such the percentage of approved or refused applications has been calculated on the basis of the total number of applications that were approved or refused (as opposed to applications received).
[36] Between 25 March 2020 and 31 July 2021, of the 189,336 applications approved and 109,789 applications refused, 48,039 applications were approved for travel on compassionate and compelling grounds and 58,690 applications were refused on this ground.
[37] Department of Home Affairs, Outward Travel Restrictions Operation Directive, V.9, https://www.homeaffairs.gov.au/covid-19/Documents/outward-travel-restrictions-operation-directive.pdf (accessed 8 October 2021). See also Department of Home Affairs, Travel restrictions and exemptions (5 October 2021), https://covid19.homeaffairs.gov.au/travel-restrictions (accessed 8 October 2021).
[38] See Parliamentary Joint Committee on Human Rights, Report 6 of 2021 (13 May 2021) pp. 2–7; Report 8 of 2021 (23 June 2021) pp. 39–47.
[39] Hasan and Chaush v Bulgaria, European Court of Human Rights App No.30985/96 (2000) [84].
[40] For example, there are reports of individuals being granted an exemption after several applications, even where circumstances have not changed, suggesting that there may be some inconsistency in the exemption approval process. See Avneet Arora, 'International travel ban extended yet again for Australian citizens and permanent residents', SBS, 11 June 2021, https://www.sbs.com.au/language/english/international-travel-ban-extended-yet-again-for-australian-citizens-and-permanent-residents (accessed 18 June 2021).
[41] Department of Home Affairs, Outward Travel Restrictions Operation Directive, V.9, https://www.homeaffairs.gov.au/covid-19/Documents/outward-travel-restrictions-operation-directive.pdf, [9] (accessed 8 October 2021).
[42] UN Human Rights Committee, General Comment No 27: Article 12 (Freedom of movement) (1999) [14], where the committee stated 'it is not sufficient that the restrictions serve the permissible purposes; they must also be necessary to protect them. Restrictive measures must conform to the principle of proportionality; they must be appropriate to achieve their protective function; they must be the least intrusive instrument amongst those which might achieve the desired result; and they must be proportionate to the interest to be protected'. In the context of COVID-19 related measures, the UN Human Rights Committee has stated that '[w]here possible, and in view of the need to protect the life and health of others, States parties should replace COVID-19-related measures that prohibit activities relevant to the enjoyment of rights under the Covenant with less restrictive measures that allow such activities to be conducted, while subjecting them as necessary to public health requirements, such as physical distancing': Statement on derogations from the Covenant in connection with the COVID-19 pandemic (2020) [2(b)].
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