Biosecurity (Human Biosecurity Emergency) (Human Coronavirus with Pandemic Potential) Variation (Extension No 3) Instrument 2021 [F2021L01232]-Exempt instruments raising significant scrutiny issues [2021] AUSStaCSDLM 171 (21 October 2021)

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Biosecurity (Human Biosecurity Emergency) (Human Coronavirus with Pandemic Potential) Variation (Extension No. 3) Instrument 2021

FRL No.	[F2021L01232][1]
Purpose	To amend the Biosecurity (Human Biosecurity Emergency) (Human Coronavirus with Pandemic Potential) Declaration 2020 to extend the human biosecurity emergency period for a further 3 months until 17 December 2021.
Authorising legislation	Biosecurity Act 2015
Portfolio	Health
Source of exemption	Subsection 476(2) of the Biosecurity Act 2015

Overview

1.1 Sections 475 and 476 of the Biosecurity Act 2015 (Biosecurity Act) allow the Governor-General to declare that a human biosecurity emergency exists and to extend the emergency period for further three month periods if the Health Minister is satisfied of certain criteria. On 18 March 2020 the Governor-General declared that a human biosecurity emergency exists regarding COVID-19 for a period of three months until 17 June 2020. The human biosecurity emergency period has subsequently been extended five times between June 2020 and June 2021.

1.2 This instrument varies the human biosecurity emergency declaration to extend the emergency period a sixth consecutive time, for a further 3 months until 17 December 2021.

1.3 During a human biosecurity emergency period, the Health Minister may determine emergency requirements or give directions deemed necessary to prevent or control the entry, emergence, establishment or spread of the relevant disease in Australian territory.

Scrutiny concerns

Exemption from disallowance

1.4 Senate standing order 23(4A) empowers the committee to scrutinise delegated legislation that is exempt from disallowance against all scrutiny principles set out in standing order 23. For such instruments, the committee may also consider whether it is appropriate for the instrument to be exempt from disallowance.

1.5 This instrument is made under subsection 476(1) of the Biosecurity Act. Subsection 476(2) of the Biosecurity Act provides that instruments made under subsection 476(1), which extend the human biosecurity emergency period, are not subject to disallowance by the Parliament.

1.6 The explanatory statement to the instrument explains that the reason for this exemption from disallowance is to ensure that the government is able to take the urgent action necessary to manage a nationally significant threat or harm to Australia’s human health. Further, it explains that the risk of disallowance would inhibit the government’s ability to act urgently on public health advice to manage a human biosecurity risk as it would create uncertainty as to whether the instrument might be disallowed.^[2]

1.7 The committee has raised significant concerns about the exemption of legislative instruments from disallowance by the Parliament, with particular regard to exempt instruments made under the Biosecurity Act. These concerns are set out in detail in the interim report of the committee's inquiry into the exemption of delegated legislation from parliamentary oversight.^[3] In this report, the committee recommended that declarations of human biosecurity emergency periods and associated extensions made under sections 475 and 476 of the Biosecurity Act be subject to disallowance.

1.8 Noting this, and the fact that the human biosecurity emergency period for COVID-19 has now been extended on six occasions, the committee considers that the explanation in the explanatory statement is not a sufficient justification as to why this instrument is exempt from parliamentary oversight.

1.9 The exemption from disallowance in relation to this instrument is particularly concerning as it means that any determinations of emergency requirements made under section 477 of the Biosecurity Act that are still currently in effect will continue to apply for the duration of the extended human biosecurity emergency period (unless revoked earlier). Further, additional determinations may be made during the period, which are also not subject to disallowance by Parliament.

1.10 The committee notes that instruments that have previously been made under section 477 of the Biosecurity Act have had significant impacts on the personal rights and liberties of individuals, including travel restrictions impacting Australian citizens and permanent residents, which is discussed in detail in Delegated Legislation Monitor 14 of 2021.^[4] The committee's concerns are heightened as there is no limitation on the number of times that the emergency period may be further extended without parliamentary oversight.

1.11 Emergency delegated legislation should be subject to appropriate parliamentary oversight. Continuing to make instruments under section 476 of the Biosecurity Act which are exempt from disallowance inhibits the Parliament's constitutional role as the primary institution responsible for making law and scrutinising possible encroachments on personal rights and liberties. Given the significant and ongoing impact of the human biosecurity emergency period on the personal rights and liberties of individuals, the committee considers the exemption from disallowance of instruments extending the period undermines Parliament’s ability to fulfil its rights-assessing and rights-protecting responsibilities with respect to delegated legislation.

1.12 The committee is deeply concerned that the government has failed to substantively engage with the committee's significant concerns in relation to instruments made under the Biosecurity Act, in particular failing to consider the significance of its concerns in relation to the continued extension of the human biosecurity emergency period without any form of parliamentary oversight. The committee intends to rigorously pursue this matter in accordance with the mandate provided by the Senate when it agreed to amend standing order 23 to allow the committee to consider exempt instruments.

1.13 The committee also takes this opportunity to again express its significant concern that the government has not yet responded to the interim report which was tabled in the Senate on 2 December 2020.

1.14 In light of the above, the committee requests the minister's detailed advice as to why it is considered necessary and appropriate for the instrument to be exempt from disallowance. The advice should specifically address the considerations as to why it is appropriate for emergency related delegated legislation to be subject to disallowance outlined at paragraphs 4.48 to 4.54 of the committee's interim report of its inquiry into the exemption of delegated legislation from parliamentary oversight.^[5]

1.15 The committee also reiterates its strong view, expressed in Delegated Legislation Monitor 14 of 2021, that amendments should be moved to the Biosecurity Amendment (Enhanced Risk Management) Bill 2021 to amend section 476 of the Biosecurity Act to provide that any future variations to extend a human biosecurity emergency period will be subject to disallowance.

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[1] Accessible on the Federal Register of Legislation at https://www.legislation.gov.au/.

[2] Explanatory statement, p. 2.

[3] Senate Standing Committee for the Scrutiny of Delegated Legislation, Exemption of delegated legislation from parliamentary oversight: Interim Report (December 2020).

[4] Senate Standing Committee for the Scrutiny of Delegated Legislation, Delegated Legislation Monitor 14 of 2021

[5] Senate Standing Committee for the Scrutiny of Delegated Legislation, Exemption of delegated legislation from parliamentary oversight: Interim Report (December 2020).