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Australian Parliamentary Joint Committee on Human Rights |
Chapter 2
Concluded matters
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]
Legislative instruments
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Purpose
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This legislative instrument imposes entry requirements on passengers to
provide proof of a negative test for Covid-19 taken within
a 48-hour period
prior to boarding a flight that has commenced from the People’s Republic
of China or the Special Administrative
Region of Hong Kong or Macau and ends in
Australian territory
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Portfolio
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Health and Aged Care
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Authorising legislation
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Disallowance
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This legislative instrument is exempt from disallowance (see subsection
44(3) of the Biosecurity Act 2015)
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Rights
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Life; health; freedom of movement; privacy; equality and
non-discrimination
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2.3 The committee requested a response from the minister in relation to the instrument in Report 2 of 2023.[3]
2.4 This determination sets out entry requirements on passengers on flights that commence from the People’s Republic of China or the Special Administrative Region of Hong Kong or Macau and end in Australian territory. The requirements are to provide proof of a negative test for Covid-19 taken within 48 hours prior to the flight. This requirement does not apply to:
• children less than 12 years old;
• individuals with evidence from a medical practitioner that:
(a) they have a medical condition that prevents them from taking a Covid-19 test;
(b) it has been at least 7 days since the person has had Covid-19 and they have now recovered, are not considered to be infectious, and have not had a fever or respiratory symptoms in the last 72 hours; or
(c) they have a serious medical condition that requires emergency management or treatment in Australia within 48 hours, that is not reasonably available in China, Hong Kong or Macau;
• individuals accompanying and supporting a person who is on an emergency medical evacuation flight;
• individuals granted an exemption by an official in exceptional circumstances (being that the individual provided a compelling reason for not being tested), or flights being granted an exemption in exceptional circumstances;
• class of individuals for whom no test for Covid-19 is reasonably available.
2.5 If a person fails to comply with an entry requirement they may contravene a civil penalty provision of 30 penalty units ($8,250).[4]
2.6 The explanatory statement does not explain why this determination has been made. However, the provision in the Biosecurity Act 2015 that empowers the making of this determination states that the section applies for the purpose of preventing a listed human disease (in this case Covid-19) from entering, or establishing itself or spreading in, Australia.[5] As such, if the determination assists in preventing and managing the spread of Covid-19 it may promote and protect the rights to life and health for persons in Australia. The right to life requires the State to take positive measures to protect life.[6] 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.[7]
2.7 The right to health is the right to enjoy the highest attainable standard of physical and mental health.[8] Article 12(2) of the International Covenant on Economic, Social and Cultural Rights requires that States parties shall take steps to prevent, treat and control epidemic diseases.[9] The UN Committee on Economic, Social and Cultural Rights has stated that the control of diseases refers to efforts to:
make available relevant technologies, using and improving epidemiological surveillance and data collection on a disaggregated basis, the implementation or enhancement of immunization programmes and other strategies of infectious disease control.[10]
2.8 While the measure may promote the rights to life and health for persons in Australia, the effect of the measure may mean that persons who cannot produce a negative Covid-19 test may be temporarily banned from entering Australia, including Australian citizens and permanent residents. As such, this engages and may limit a number of other human rights, particularly the rights to freedom of movement and equality and non-discrimination. The right to freedom of movement includes the right to enter, remain in, or return to one's own country.[11] The UN Human Rights Committee has stated that the right of a person to enter his or her own country 'recognizes the special relationship of a person to that country'.[12] The reference to a person's 'own country' is not restricted to countries with which the person has the formal status of citizenship. It includes a country to which a person has very strong ties, such as long-standing residence and close personal and family ties.[13] The right to freedom of movement is not absolute: limitations can be placed on the right provided certain standards are met. However, the UN Human Rights Committee has stated in relation to the right to enter one's own country:
In no case may a person be arbitrarily deprived of the right to enter his or her own country. The reference to the concept of arbitrariness in this context is intended to emphasize that it applies to all State action, legislative, administrative and judicial; it guarantees that even interference provided for by law should be in accordance with the provisions, aims and objectives of the Covenant and should be, in any event, reasonable in the particular circumstances. The Committee considers that there are few, if any, circumstances in which deprivation of the right to enter one’s own country could be reasonable.[14]
2.9 Further, requiring the production of a negative Covid-19 test also engages and limits the right to privacy. The right to privacy includes respect for informational privacy, including the right to respect for private and confidential information, particularly the storing, use and sharing of such information.[15] It also includes the right to control the dissemination of information about one's private life. 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. The right to privacy may be subject to permissible limitations which are provided by law and are not arbitrary. In order for limitations not to be arbitrary, the measure must pursue a legitimate objective and be rationally connected to (that is, effective to achieve) and proportionate to achieving that objective.
2.10 In addition, the measure also appears to engage the right to equality and
non-discrimination.[16] This right provides that everyone is entitled to enjoy their rights without discrimination of any kind and that all people are equal before the law and entitled without discrimination to equal and non‑discriminatory protection of the law.[17] The right to equality encompasses both 'direct' discrimination (where measures have a discriminatory intent) and 'indirect' discrimination (where measures have a discriminatory effect on the enjoyment of rights).[18] Indirect discrimination occurs where 'a rule or measure that is neutral at face value or without intent to discriminate', exclusively or disproportionately affects people with a particular protected attribute, such as race or nationality.[19] In this case it appears that requiring passengers from China, Macau and Hong Kong to show evidence of a negative Covid-19 test is likely to disproportionately affect persons of Chinese descent. Where a measure impacts on a particular group disproportionately it establishes prima facie that there may be indirect discrimination.[20] Differential treatment (including the differential effect of a measure that is neutral on its face) will not constitute unlawful discrimination if the differential treatment is based on reasonable and objective criteria such that it serves a legitimate objective, is rationally connected to that objective and is a proportionate means of achieving that objective.[21]
2.11 The committee noted that requiring only travellers from China, Macau and Hong Kong to show evidence of a negative Covid-19 test before entering Australia limits the rights to freedom of movement, a private life and equality and non-discrimination. The committee considered further information was required to assess the compatibility of this measure with these rights and sought the minister's advice in relation to:
(a) what is the objective behind requiring travellers from China, Macau and Hong Kong to show evidence of a negative Covid-19 test before entering Australia;
(b) how is requiring only travellers from China, Macau and Hong Kong to show such evidence rationally connected to – that is, effective to achieve – that objective;
(c) whether persons of Chinese descent will be disproportionately affected by this requirement, and if so, is this differential treatment based on reasonable and objective criteria;
(d) whether there is any less rights restrictive way to achieve the stated aims of preventing and controlling the entry, emergence, establishment or spread of Covid-19 into Australia; and
(e) why this instrument is not time-limited, but is due to sunset ten years from the date it was made.
2.12 The full initial analysis is set out in Report 2 of 2023.
2.13 The minister advised:
The decision to implement predeparture testing requirements was made to safeguard Australia from the risk of potential new emerging variants, and in recognition of the rapidly evolving situation in China and uncertainty about emerging viral variants at that time. These arrangements were precautionary and temporary and were kept under review. With effect from 11 March this year, on the basis of public health advice and epidemiological evidence, the requirements you wrote about were repealed.
(a) what is the objective behind requiring travellers from China, Macau and Hong Kong to show evidence of a negative Covid-19 test before entering Australia;
The objective of the requirements made by the Biosecurity (Entry Requirements Human Coronavirus with Pandemic Potential] Determination 2023 (the Determination] was to prevent the entry, emergence, establishment and spread of new COVID-19 variants in an Australian territory or part of an Australian territory.
At the time the Determination was made, surveillance data from China was scant, and media reporting suggested very significant waves of infection being experienced across the country. Health experts in China predicted three winter waves of COVID-19 transmission, with the spike in transmission predicted to run until mid-January 2023, and subsequent waves predicted in late January and late February /early March – associated with the Lunar New Year celebrations and returning to work respectively. New variants of concern had the potential to emerge and circulate throughout these waves.
Subsections 44(1) and 44(2) of the Biosecurity Act 2015 (the Act) provide that the Health Minister (who is the Federal Minister for Health and Aged Care) may determine one or more requirements for individuals who are entering Australian territory at a landing place or port for the purpose of preventing a listed human disease from entering, or establishing itself or spreading in, Australian territory or a part of Australian territory. Human coronavirus with pandemic potential, which includes COVID-19, is a listed human disease under the Act.
(b) how is requiring only travellers from China, Macau and Hong Kong to show such evidence rationally connected to - that is, effective to achieve – that objective;
The decision to require only travellers from China, Macau and Hong Kong to show evidence of a negative COVID-19 test was made to safeguard Australia from the risk of potential new emerging variants, in recognition of the rapidly evolving situation in China and the uncertainty about emerging variants of concern. More simply, a risk in China was identified, and measures were put in place to protect Australians.
I note that imposing pre-departure testing requirements is a legal and legitimate method of safeguarding against the entry and spread of listed human diseases under the Act. Pre-departure testing provides travellers, airport staff, airline staff and the Australian community with peace of mind and assurance they are travelling, working or existing with relevant and effective safeguards in place.
Many like-minded countries across the Asia-Pacific, Europe and North America also moved to reinstate or implement border measures in response to the evolving COVID-19 situation in China in early January 2023. These like-minded countries have also only recently removed those requirements or recently announced their intention to remove those requirements.
(c) whether persons of Chinese descent will be disproportionately affected by this requirement, and if so, is this differential treatment based on reasonable and objective criteria;
The requirement affected all travellers from China, including from Hong Kong and Macau, regardless of nationality or descent. It is important to note that the requirement did not prevent the uplift of passengers. The information collected through the pre-departure testing was collected in accordance with the relevant Australian privacy laws.
(d) whether there is any less rights restrictive way to achieve the stated aims of preventing and controlling the entry, emergence, establishment or spread of Covid-19 into Australia; and
As outlined under Section 34 of the Act, one of the principles that must be considered prior to making a determination under the Act is that the measure is no more restrictive or intrusive than is required in the circumstance. The exemptions to the requirements provided for in the Determination made the instrument proportionate and as least restrictive as possible.
Since the Determination came into effect, the Department of Health and Aged Care has been exploring ways to enhance Australia's existing surveillance capabilities, to further strengthen our capacity to detect and respond to emerging variants of concern of international origin.
This includes:
• pilot program to test aircraft wastewater
• expansion of the existing community sentinel wastewater testing program, and
• enhancing national consistency in follow-up of people who test positive for
• COVID-19 and have travelled overseas in the preceding 14 days.
(e) why this instrument is not time-limited, but is due to sunset ten years from the date it was made.
The Biosecurity (Entry Requirements - Human Coronavirus with Pandemic Potential) Determination 2023 (Biosecurity Determination) is a legislative instrument made under subsection 44(2) of the Biosecurity Act 2015 (Biosecurity Act). Subsection 44(2) of the Biosecurity Act enables the Health Minister to determine one or more requirements for individuals who are entering Australian territory at a landing place or port for the purpose of preventing a listed human disease from entering, or establishing itself or spreading in, Australian territory. Instruments made under subsection 44(2) of the Biosecurity Act are not time limited since they are in force for as long as required to achieve the instrument's purpose, and this timeframe is not evident at the time of the instrument's making.
Sunsetting is the automatic repeal of legislative instruments after a fixed 10-year period. All legislative instruments, including the Biosecurity Determination, are subject to sunsetting unless they are exempt from sunsetting under section 54 of the Legislation Act. Generally, legislative instruments sunset on 1 April or 1 October on or after the tenth anniversary of their registration. An instrument will continue to remain in force until the instrument sunsets or is actively repealed prior to the sunset date.
The human health provisions in the Act are intended to be flexible to provide the Government with options to manage human biosecurity risks in Australia. Every requirement made under the Act, particularly in relation to the COVID-19 pandemic response, is regularly reviewed based on the latest available public health advice. The Australian Government has been monitoring the situation in China and reviewing epidemiological data as it became available. The instrument was repealed on 11 March 2023 as there have been no new variants of concern reported from China, and a significant decrease in cases, hospitalisations and deaths noted in the data from China.
2.14 The minister advised that the objective of this measure was to prevent the entry, emergence, establishment and spread of new Covid-19 variants, because at the time it was made media reporting suggested very significant waves of infection being experienced across China, with the potential for new variants of concern to emerge and circulate. Preventing the entry or spread of new Covid-19 variants is a legitimate objective for the purposes of international human rights law. In terms of whether the requirements in the determination would be rationally connected, that is, effective to achieve that objective, the minister advised that the measure was introduced in recognition of the rapidly evolving situation in China and the uncertainty about emerging variants of concern. The minister also advised that many like-minded countries across the Asia-Pacific, Europe and North America also moved to reinstate or implement border measures in response to the evolving Covid-19 situation in China in early January 2023. As this determination was preventative in nature, as it was seeking to mitigate the possibility of variants emerging, it is difficult to assess whether the measure was (at the time it was made) effective to achieve its objective. Rather, it is preferable to consider if the measure is reasonable and proportionate.
2.15 In this respect, the minister advised that shortly after the committee reported on this determination it was repealed, as there have been no new variants of concern reported from China, and a significant decrease in cases, hospitalisations and deaths noted in the data from China.[23] As such, the requirements imposed by the determination lasted from 5 January to 11 March 2023. The time-limited nature of the measure assists with its proportionality. As set out in the initial analysis, there are also a number of other matters that assist with proportionality. In particular, this is not a complete ban on travel to Australia from these countries, rather if an individual has Covid-19 they would need to wait until they were no longer infectious. Further, the instrument sets out a number of exceptions from the requirement, including exceptions based on individual circumstances.
2.16 While it remains unclear whether only subjecting travellers from China, Macau and Hong Kong to the extra testing requirement was effective to prevent the spread of Covid-19 variants in Australia, as the measure has now been repealed and so was time-limited, and noting the exemptions that applied in the instrument, the limits on the rights to freedom of movement, a private life and equality and non-discrimination appear likely to have been reasonable and proportionate.
2.17 The committee thanks the minister for this response. As stated in the initial report, the committee considers that as the determination was designed to prevent the spread of new Covid-19 variants, it likely promoted and protected 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.
2.18 The committee welcomes the minister's advice that this determination was repealed shortly after the committee reported. As such, noting the determination sought to achieve the legitimate objective of seeking to prevent potential new variants of concern emerging and circulating in Australia, and as the determination was strictly time-limited and had exemptions available for individual circumstances, the committee considers any limit on human rights by this determination was likely reasonable and proportionate.
2.19 The committee notes the minister's advice that such determinations will be in force for as long as is required to achieve their purpose and in general such determinations will sunset after 10 years. The committee welcomes the advice that every requirement made under the Biosecurity Act 2015 is regularly reviewed based on the latest available public health advice. The committee remains concerned, however, that there is no legislative requirement to regularly review such determinations. The committee notes that previous legislative responses to the Covid-19 pandemic were time-limited to three months, meaning new legislative instruments needed to be made to continue the measures.[24] The committee considers there is some risk, without a legislative requirement to regularly review the continued necessity for such measures, that these could continue beyond that which is strictly necessary.
2.20 Further, as noted in the initial analysis, there was no statement of compatibility provided with this instrument. The committee's role is to scrutinise all legislative instruments for compatibility with human rights.[25] There is no legislative requirement that these determinations, which are exempt from the disallowance process, be accompanied by a statement of compatibility.[26] However, the committee has consistently said since the start of the legislative response to the Covid-19 pandemic,[27] that given the human rights implications of legislation regulating the movement of persons, it would be appropriate for all such legislative instruments to be accompanied by a detailed statement of compatibility.
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Suggested action:
2.21 The committee recommends that sections 44 and 45 of the Biosecurity
Act 2015 be amended to provide that a determination made under these
provisions:
(a) must not be in force longer than the period that the Health Minister
considers necessary to meet the purposes stated in those
provisions; and
(b) in any case, must not be longer than 3 months.
2.22 The committee reiterates that the Department of Health and Aged Care
should be providing statements of compatibility for instruments
made under
the Biosecurity Act 2015, many of which can have a profound effect
on human rights.
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2.23 The committee considers that its concerns have been addressed by the repeal of this instrument, and makes no further comment in relation to this legislative instrument.
[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 (Entry Requirements—Human Coronavirus with Pandemic Potential) Determination 2023 [F2023L00009], Report 4 of 2023; [2023] AUPJCHR 33.
[3] Parliamentary Joint Committee on Human Rights, Report 2 of 2023 (8 March 2023), pp. 38-44.
[4] Biosecurity Act 2015, section 46.
[5] Biosecurity Act 2015, section 44.
[6] International Covenant on Civil and Political Rights, article 6.
[7] See United Nations Human Rights Committee, General Comment No. 36, Article 6 (Right to Life) (2019), [26].
[8] International Covenant on Economic, Social and Cultural Rights, article 12(1).
[9] International Covenant on Economic, Social and Cultural Rights, article 12(2)(c).
[10] UN Committee on Economic, Social and Cultural Rights, General Comment No. 14: The Right to the Highest Attainable Standard of Health (Art. 12) (2000) [16].
[11] International Covenant on Civil and Political Rights, article 12(4).
[12] UN Human Rights Committee, CCPR General Comment No. 27: Article 12 (Freedom of movement) (1999) [19].
[13] Nystrom v Australia, UN Human Rights Committee Communication No.1557/2007 (2011).
[14] UN Human Rights Committee, CCPR General Comment No. 27: Article 12 (Freedom of movement) (1999) [21].
[15] International Covenant on Civil and Political Rights, article 17.
[16] Articles 2 and 26 of the International Covenant on Civil and Political Rights.
[17] International Covenant on Civil and Political Rights, articles 2 and 26. Article 2(2) of the International Covenant on Economic, Social and Cultural Rights also prohibits discrimination specifically in relation to the human rights contained in the International Covenant on Economic, Social and Cultural Rights.
[18] UN Human Rights Committee, General Comment 18: Non-discrimination (1989).
[19] Althammer v Austria, UN Human Rights Committee Communication no. 998/01 (2003) [10.2]. The prohibited grounds of discrimination are race, colour, sex, language, religion, political or other opinion, national or social origin, property, birth or other status. Under 'other status' the following have been held to qualify as prohibited grounds: age, nationality, marital status, disability, place of residence within a country and sexual orientation. The prohibited grounds of discrimination are often described as 'personal attributes'.
[20] D.H. and Others v the Czech Republic, European Court of Human Rights (Grand Chamber), Application no. 57325/00 (2007) [49]; Hoogendijk v the Netherlands, European Court of Human Rights, Application no. 58641/00 (2005).
[21] UN Human Rights Committee, General Comment 18: Non-Discrimination (1989) [13]; see also Althammer v Austria, UN Human Rights Committee Communication No. 998/01 (2003) [10.2].
[22] The minister's response to the committee's inquiries was received on 23 March 2023. This is an extract of the response. The response is available in full on the committee's website.
[23] See Biosecurity (Entry Requirements—Human Coronavirus with Pandemic Potential) Repeal Determination 2023 [F2023L00209].
[24] For example, the declaration of the human biosecurity emergency period can only last for three months, see Biosecurity Act 2015, section 475. Further, the ban on travel from passengers from India was time limited to 12 days, see Biosecurity (Human Biosecurity Emergency) (Human Coronavirus with Pandemic Potential) (Emergency Requirements—High Risk Country Travel Pause) Determination 2021 [F2021L00533].
[25] The Human Rights (Parliamentary Scrutiny) Act 2011, section 7, provides that the function of the committee is to examine all legislative instruments that come before either House of the Parliament for compatibility with human rights.
[26] 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.
[27] 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).
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