|
|
Home
| Databases
| WorldLII
| Search
| Feedback
Australian Parliamentary Joint Committee on Human Rights |
|
Purpose
|
This legislative instrument extends the human biosecurity emergency period
for a further three months until 17 September 2021
|
|
Portfolio
|
Health and Aged Care
|
|
Authorising legislation
|
|
|
Last day to disallow
|
This instrument is exempt from disallowance (see subsections 475(2) and
477(2) of the Biosecurity Act 2015)
|
|
Rights
|
Life; health; freedom of movement; equality and non-discrimination;
privacy
|
1.4 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.[2] 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.
1.5 This instrument extends the human biosecurity emergency period for a further three months until 17 September 2021, unless further extended by the Governor-General. The effect of this instrument 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).[3] These include:
• mandatory pre-departure COVID-19 testing and mask wearing for passengers and aircrew travelling on an international flight to Australia;[4]
• restrictions on cruise ships entering Australian territory or ports;[5]
• a ban on Australian citizens or permanent residents from leaving Australia as a passenger on an outgoing aircraft or vessel unless otherwise exempted;[6] and
• restrictions on the trade of retail outlets at international airports.[7]
1.6 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, the instrument may promote the rights to life and health.[8] The right to life requires States parties to take positive measures to protect life.[9] 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.[10] The right to health requires that States parties shall take steps to prevent, treat and control epidemic diseases.[11] 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'.[12]
1.7 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.[13] 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.[14] 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.[15] Insofar as the effect of the instrument 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.
1.8 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.[16] 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.[17] This includes a requirement that the state does not arbitrarily interfere with a person's private and home life.[18]
1.9 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'.[19] 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'.[20] The sanctions imposed in connection with any emergency and temporary measures must also be proportionate in nature.[21] 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.
1.10 The explanatory statement states that the purpose of the instrument is to extend the human biosecurity emergency period for a further three months, which is necessary to ensure the minister can continue to exercise the emergency powers under the Biosecurity Act.[22] This extension is based on the minister's advice that COVID-19 continues to pose a severe and immediate threat to human health on a nationally significant scale, and the extension is necessary to prevent or control the entry or spread of COVID-19 in Australia.[23]
1.11 The control and prevention of the entry and spread of COVID-19, an infectious disease that has caused and has the ability to continue causing high levels of morbidity and mortality, is likely a legitimate objective for the purposes of international human rights law. Noting that this instrument seeks to protect public health and the rights and freedoms of others – in particular, protect the general Australian population from exposure to COVID-19 – and given that there continue to be cases of people contracting COVID-19 at sea and overseas, these measures would appear to be rationally connected to that objective.[24] However, as the extension of the human biosecurity emergency period has the effect of extending the determinations made pursuant to section 477 of the Biosecurity Act, it is also important to identify the specific objective being pursued by each extended determination (for example, what the objective is for continuing to ban overseas travel) and assess whether this objective is legitimate and how the determinations are rationally connected to that objective. The explanatory statement notes that the effect of the instrument is the continued application of the emergency determinations, but it does not identify the specific objective being pursued by each determination.[25]
1.12 Regarding the proportionality of the instrument, it is necessary to consider whether the proposed limitations are sufficiently circumscribed; accompanied by sufficient safeguards, including the possibility of oversight and the availability of review; and whether any less rights restrictive alternatives could achieve the same stated objective.[26] The temporary nature of these measures is an important consideration when assessing proportionality.[27] The Governor-General may extend a human biosecurity emergency period more than once, with each extension lasting for a period of three months.[28] The period can only be extended if the minister is satisfied that the disease is continuing to pose a severe and immediate threat, or continuing to cause harm to human health on a nationally significant scale and the extension is necessary.[29] 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.[30] In this case, the human biosecurity emergency period was first declared on 18 March 2020 and has subsequently been extended multiple times, most recently until 17 September 2021. 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.
1.13 Before making an emergency determination, the Biosecurity Act requires the minister to be satisfied that the requirement will likely be effective, and appropriate and adapted, to achieve its purpose; the requirement and 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.[31] If circumstances change such that the determination is no longer necessary, the minister may revoke it prior to the end of the human biosecurity emergency period. This provision would likely assist with the proportionality of this measure. In particular, it may help to ensure that the emergency determinations are the least rights restrictive way of achieving the objective.
1.14 Regarding the ban on Australian citizens and permanent residents from leaving Australia, an exemption applies to certain persons, such as a person who is ordinarily resident in another country, or aircraft or vessel crew members, and may apply in exceptional circumstances, such as where an Australian citizen or permanent resident provides a compelling reason for needing to leave Australia.[32] In relation to exemptions in exceptional circumstances, in practice, if the exemption is not granted by the Australian Border Force Commissioner the person may reapply for an exemption, noting that there does not appear to be any formal review process of any exemption decision.[33] The extent to which the exemption process operates as an effective safeguard will depend on how the exemptions are applied in practice. The Outward Travel Restrictions Operation Directive (the directive) provides some guidance as to how the exemption process may operate in practice.[34] It sets out when individual exemptions from the travel ban might be granted, including when an applicant:
• is attending the funeral of a close family member, including parent, sibling, partner, child or grandparent;
• is travelling due to critical or serious illness of a close family member;
• is travelling for necessary medical treatment not available in Australia;
• needs to pick up a minor child (adoption, surrogacy, court order etc) and return to Australia with that child;
• intends to complete an existing work contract overseas or is travelling on business;
• is travelling to an Australian territory (e.g. Christmas Island) which is outside the migration zone;
• has a compelling reason for travel;
• is travelling in the national interest or in response to the COVID-19 outbreak; and
• has had a previous request approved and the reasons for travel have not changed.[35]
1.15 The 'exceptional circumstances' individual exemption criteria outlined above do not, however, apply to individuals seeking to travel to Papua New Guinea (PNG) or India.[36] The directive states that based on current health advice, 'individuals seeking an "exceptional circumstances" exemption to travel from Australia to PNG will not be approved until further notice, except in extremely limited circumstances', such as for the provision of assistance to PNG's COVID-19 response or fly-in-fly-out workers undertaking critical operations and projects.[37] In relation to travel to India, the directive states that exemptions will only be approved in limited circumstances, including persons traveling due to the death or funeral of a close family member, persons visiting a close family member who is critically ill or persons traveling to India to escort an Australian citizen or permanent resident minor back to Australia.[38] It would appear that the country an individual is seeking to travel to is therefore a relevant consideration in the decision to grant an exemption, although this is not specified in the legislative instrument.
1.16 To the extent that the directive provides the Commissioner with capacity to apply the travel ban flexibly, having regard to the merits of an individual case, it may assist with the proportionality of the measure. However, the strength of this safeguard will depend on how the directive is applied in practice, noting that it is unknown what proportion of travel exemption applications are denied and whether there is certainty and consistency in the exemption application and approval process. While the measure contains some flexibility, the breadth of discretion conferred on authorised officers of the Australian Border Force and the Department of Home Affairs raises questions as to whether this discretion is sufficiently circumscribed and exercised in a manner that is compatible with human rights. 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. Noting that decisions to grant an exemption can be made by APS3 officers and above, and that there is no external review process, there are questions as to whether there are sufficient controls over the measure, including the possibility of monitoring and oversight. There may be a risk that given the breadth of discretion conferred on authorised officers and in the absence of 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.
1.17 As there is no statement of compatibility accompanying this instrument, it is difficult to assess the compatibility of these measures with international human rights law, particularly with respect to the proportionality of these measures,[41] noting it is unclear whether there are other less rights restrictive ways to achieve the objective being pursued.[42]
1.18 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.
1.19 The committee notes that this instrument extends the human biosecurity emergency period for a further three months until 17 September 2021, which has the effect that the following determinations will continue in operation 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 from 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.
1.20 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.
1.21 The committee notes that these measures 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.
1.22 However, as there is no statement of compatibility accompanying this instrument, which we note is not required in relation to this instrument,[43] questions remain as to whether all of the measures are reasonable, necessary and proportionate. Given the human rights implications of legislative instruments dealing with the COVID-19 pandemic, the committee reiterates[44] that it would be appropriate for all such legislative instruments to be accompanied by a detailed statement of compatibility.
1.23 The committee has not yet formed a concluded view in relation to this matter. It considers further information is required to assess the human rights implications of this bill, and as such seeks the minister's advice as to the matters set out at paragraph [1.18].
[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], Report 8 of 2021; [2021] AUPJCHR 73.
[2] The Biosecurity (Human Biosecurity Emergency) (Human Coronavirus with Pandemic Potential) Declaration 2020 [F2020L00266] was made pursuant to section 475 of the Biosecurity Act 2015.
[3] Explanatory statement, p. 3.
[4] Biosecurity (Human Biosecurity Emergency) (Human Coronavirus with Pandemic Potential) (Emergency Requirements – Incoming International Flights) Determination 2021 [F2021L00061].
[5] Biosecurity (Human Biosecurity Emergency) (Human Coronavirus with Pandemic Potential) (Emergency Requirements for Cruise Ships) Determination 2020 [F2020C00809].
[6] Biosecurity (Human Biosecurity Emergency) (Human Coronavirus with Pandemic Potential) (Overseas Travel Ban Emergency Requirements) Determination 2020 [F2021C00358].
[7] Biosecurity (Human Biosecurity Emergency) (Human Coronavirus with Pandemic Potential) (Emergency Requirements—Retail Outlets at International Airports) Determination 2020 [F2020C00725].
[8] International Covenant on Civil and Political Rights, articles 6 (right to life) and 12 (right to health).
[9] International Covenant on Civil and Political Rights, article 6.
[10] See United Nations Human Rights Committee, General Comment No. 36, Article 6 (Right to Life) (2019) [26].
[11] International Covenant on Economic, Social and Cultural Rights, article 12(2)(c).
[12] United Nations Human Rights Committee, Statement on derogations from the Covenant in connection with the COVID-19 pandemic (2020) [2].
[13] 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].
[14] United Nations Human Rights Committee, General Comment 27: Article 12 (Freedom of movement) (1999) [9].
[15] United Nations Human Rights Committee, General Comment 27: Article 12 (Freedom of movement) (1999) [8].
[16] International Covenant on Civil and Political Rights, articles 2 and 26.
[17] United Nations Human Rights Committee, General Comment No. 16: Article 17 (1988) [3]-[4].
[18] 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).
[19] United Nations Human Rights Committee, Statement on derogations from the Covenant in connection with the COVID-19 pandemic (2020) [2].
[20] United Nations Human Rights Committee, Statement on derogations from the Covenant in connection with the COVID-19 pandemic (2020) [2(b)].
[21] United Nations Human Rights Committee, Statement on derogations from the Covenant in connection with the COVID-19 pandemic (2020) [2(b)].
[22] Explanatory statement, pp. 1–2.
[23] Explanatory statement, p. 1.
[24] See, Parliamentary Joint Committee on Human Rights, Report 7 of 2020 (17 June 2020) pp. 7–10; Report 12 of 2020 (15 October 2020) pp. 6–13; Report 14 of 2020 (26 November 2020) pp. 71–81.
[25] Explanatory statement, p. 3.
[26] United Nations Human Rights Committee, General Comment 27: Article 12 (Freedom of movement) (1999) [14]-[15].
[27] 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].
[28] Biosecurity (Human Biosecurity Emergency) (Human Coronavirus with Pandemic Potential) Variation (Extension No. 2) Instrument 2020, explanatory statement, p. 1.
[29] Biosecurity Act 2015, section 476.
[30] 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.
[31] Biosecurity Act 2015, subsection 477(4).
[32] Biosecurity (Human Biosecurity Emergency) (Human Coronavirus with Pandemic Potential) (Overseas Travel Ban Emergency Requirements) Determination 2020 [F2021C00358], sections 6 and 7.
[33] Parliamentary Joint Committee on Human Rights, Report 14 of 2020 (26 November 2020) p. 79.
[34] Department of Home Affairs, Outward Travel Restrictions Operation Directive, V.8, https://www.homeaffairs.gov.au/covid-19/Documents/outward-travel-restrictions-operation-directive.pdf (accessed 18 June 2021). See also Department of Home Affairs, Travel restrictions and exemptions (16 June 2021), https://covid19.homeaffairs.gov.au/travel-restrictions (accessed 18 June 2021).
[35] Department of Home Affairs, Outward Travel Restrictions Operation Directive, V.8, [9]–[10] https://www.homeaffairs.gov.au/covid-19/Documents/outward-travel-restrictions-operation-directive.pdf (accessed 18 June 2021).
[36] Department of Home Affairs, Outward Travel Restrictions Operation Directive, V.8, [7]–[8] https://www.homeaffairs.gov.au/covid-19/Documents/outward-travel-restrictions-operation-directive.pdf (accessed 18 June 2021).
[37] Department of Home Affairs, Outward Travel Restrictions Operation Directive, V.8, [7] https://www.homeaffairs.gov.au/covid-19/Documents/outward-travel-restrictions-operation-directive.pdf (accessed 18 June 2021).
[38] Department of Home Affairs, Outward Travel Restrictions Operation Directive, V.8, [8] https://www.homeaffairs.gov.au/covid-19/Documents/outward-travel-restrictions-operation-directive.pdf (accessed 18 June 2021).
[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] The United Nations Human Rights Committee has reiterated that restrictions on the right to freedom of movement cannot merely serve permissible purposes. They must also be necessary to protect them and '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': General Comment 27: Article 12 (Freedom of movement) (1999) [14].
[42] The United Nations 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)].
[43] The Human Rights (Parliamentary Scrutiny) Act 2011, section 9, provides that only legislative instruments subject to disallowance under the Legislation Act 2003 require a statement of compatibility.
[44] The committee first stated this in Parliamentary Joint Committee on Human Rights, Report 5 of 2020: Human rights scrutiny of COVID-19 legislation, 29 April 2020. The committee also wrote to all ministers advising them of the importance of having a detailed statement of compatibility with human rights for all COVID-19 related legislation in April 2020 (see media statement of 15 April 2020, available on the committee's website).
AustLII:
Copyright Policy
|
Disclaimers
|
Privacy Policy
|
Feedback
URL: http://www.austlii.edu.au/au/other/AUPJCHR/2021/73.html