Home | Databases | WorldLII | Search | Feedback Australian Parliamentary Joint Committee on Human Rights

You are here: 

Biosecurity (Human Biosecurity Emergency) (Human Coronavirus With Pandemic Potential) (Emergency Requirements for Cruise Ships) Amendment (No 1) Determination 2020 [F2020l01114] and Biosecurity (Human Biosecurity Emergency) (Human Coronavirus With Pandemic Potential) Variation (Extension No 2) Instrument 2020 [F2020l01129] [2020] AUPJCHR 144 (15 October 2020)

Biosecurity (Human Biosecurity Emergency) (Human Coronavirus with Pandemic Potential) (Emergency Requirements for Cruise Ships) Amendment (No. 1) Determination 2020 [F2020L01114]
Biosecurity (Human Biosecurity Emergency) (Human Coronavirus with Pandemic Potential) Variation (Extension No. 2) Instrument 2020 [F2020L01129]^[1]

Purpose	The first instrument amends existing prohibitions on cruise ships entering Australian territory or ports unless an exemption applies, to remain in effect for the duration of the human biosecurity emergency period. The second instrument extends the human biosecurity emergency period for a further three months until 17 December 2020.
Portfolio	Health
Authorising legislation	Biosecurity Act 2015
Disallowance	These instruments are 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
Status	Seeking additional information

Extension of the human biosecurity emergency period

1.12 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 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 2015 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. The Biosecurity (Human Biosecurity Emergency) (Human Coronavirus with Pandemic Potential) Variation (Extension No. 2) Instrument 2020 extends the human biosecurity emergency period for a further three months until 17 December 2020, unless further extended by the Governor-General.

1.13 The Biosecurity (Human Biosecurity Emergency) (Human Coronavirus with Pandemic Potential) (Emergency Requirements for Cruise Ships) Amendment (No. 1) Determination 2020 amends an earlier determination^[3] which prevents a cruise ship from entering Australian territory or Australian ports, unless an exemption applies to the ship.^[4] The amendments mean that the existing prohibitions are in effect for the duration of the human biosecurity emergency period (unless revoked earlier).

1.14 The explanatory statement notes that the Minister for Health has made the following determinations that will be extended by three months until 17 December 2020 as a result of this instrument:

• restrictions on cruise ships entering Australian territory or ports;^[5]

• a ban on Australian citizens or permanent residents from leaving Australia unless otherwise exempted;^[6]

• prohibition on price gouging in relation to essential goods, namely personal protective equipment and disinfectant products;^[7] and

• restrictions on the trade of retail outlets at international airports.^[8]

Preliminary international human rights legal advice

Rights to life, health and freedom of movement

1.15 The extension of the human biosecurity emergency period, and the consequent extension of the restrictions on cruise ships, overseas travel ban, prohibition on price gouging in relation to essential goods, 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, it would appear that the instruments 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 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 United Nations 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]

1.16 However, extending the biosecurity emergency period, and thereby continuing to enliven the various powers under the Biosecurity Act 2015, is likely to engage and limit a number of rights, including the right 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] The right to equality and non-discrimination provides that everyone is entitled to enjoy their rights without discrimination of any kind, including for example on the grounds of nationality.^[17] 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]

1.17 By extending the emergency period to continue preventing 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 freedom of movement appears to be limited. This is because the right to move freely within a country and the right to leave the country, including for travelling abroad, is restricted. The application of the travel ban to Australian citizens and permanent residents may also 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 a private life may also be limited as the measures restricting movement and trade involves interference with a person’s private life.

1.18 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 United Nations 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]

1.19 Regarding the objective underpinning the extension of the human biosecurity emergency period, the explanatory statement states that it is necessary to ensure that the emergency requirements continue to apply after 17 September 2020 given the ongoing nature of the COVID-19 pandemic and the Minister for Health's view that COVID-19 continues to pose a severe and immediate threat to human health on a nationally significant scale.^[23] Regarding the objective underpinning the continued cruise ship ban for the duration of the human biosecurity emergency period, the explanatory statement states that it is necessary to protect Australia's health and quarantine capacity from cruise ship operations.^[24] The prevention of the 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 these instruments seek to protect public health and the rights and freedoms of others – in particular, protect the general Australian population from exposure to COVID-19 – they would appear to be rationally connected to that objective.^[25] 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 2015, it is also important to identify the specific objective being pursued by each extended determination (for example, what the objective is for banning overseas travel) and assess whether this objective is legitimate and how the determinations are rationally connected to that objective.

1.20 Regarding the proportionality of these instruments, 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 the proportionality of the instruments.^[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] 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. Although, it is noted that the period can only be extended if the Minister for Health 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]

1.21 As there is no statement of compatibility accompanying the explanatory statement for either 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,^[30] noting it is unclear whether there are other less rights restrictive ways to achieve the objective being pursued.^[31]

1.22 In order to assess the compatibility of these instruments with international human rights law, further information is required as to:

(a) what is the objective, and how are the measures rationally connected to that objective, of each of the measures that are extended for a further three months under the Biosecurity (Human Biosecurity Emergency) (Human Coronavirus with Pandemic Potential) Variation (Extension No. 2) Instrument 2020, in particular:

• restrictions on cruise ships entering Australian territory or ports;^[32] and

• a ban on Australian citizens or permanent residents from leaving Australia unless otherwise exempted.^[33]

(b) whether there are effective safeguards or controls over each of these measures, including the possibility of monitoring and access to review;

(c) how exemptions from these prohibitions are applied, in particular, how many applications for exemptions have been made and how many have been granted to permit Australian citizens or permanent residents to leave the country under the Biosecurity (Human Biosecurity Emergency) (Human Coronavirus with Pandemic Potential) (Overseas Travel Ban Emergency Requirements) Determination 2020; and

(d) whether are there any other less rights restrictive ways to achieve the stated objectives.

Committee view

1.23 The committee notes that these instruments extend the human biosecurity emergency period for a further three months until 17 December 2020, which has the effect that the following determinations will continue in operation as a result of this instrument:

• restrictions on cruise ships entering Australian territory or ports;

• a ban on Australian citizens or permanent residents from leaving Australia unless otherwise exempted;

• prohibition on price gouging in relation to essential goods, namely personal protective equipment and disinfectant products; and

• restrictions on the trade of retail outlets at international airports.

1.24 As the committee has previously stated when these determinations were originally introduced, these instruments, 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.

1.25 The committee notes that these instruments 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.

1.26 However, as there has been no statement of compatibility provided with respect to either instrument, which we note are not required in relation to these instruments, 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 considers that it would be appropriate for all such legislative instruments to be accompanied by a detailed statement of compatibility.

1.27 In order to form a concluded view of the human rights implications of these instruments, the committee seeks the minister's advice as to the matters set out at paragraph [1.22].

[1] This entry can be cited as: Parliamentary Joint Committee on Human Rights, Biosecurity (Human Biosecurity Emergency) (Human Coronavirus with Pandemic Potential) (Emergency Requirements for Cruise Ships) Amendment (No. 1) Determination 2020 [F2020L01114] and Biosecurity (Human Biosecurity Emergency) (Human Coronavirus with Pandemic Potential) Variation (Extension No. 2) Instrument 2020 [F2020L01129], Report 12 of 2020; [2020] AUPJCHR 144.

[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] Biosecurity (Human Biosecurity Emergency) (Human Coronavirus with Pandemic Potential) (Emergency Requirements for Cruise Ships) Determination 2020.

[4] Explanatory statement, p. 1.

[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 [F2020C00870].

[7] Biosecurity (Human Biosecurity Emergency) (Human Coronavirus with Pandemic Potential) (Essential Goods) Determination 2020 [F2020L00355].

[8] Biosecurity (Human Biosecurity Emergency) (Human Coronavirus with Pandemic Potential) (Emergency Requirements—Retail Outlets at International Airports) Determination 2020 [F2020C00725].

[9] Right to life: International Covenant on Civil and Political Rights, article 6. Right to health: International Covenant on Economic, Social and Cultural Rights, article 12.

[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] Explanatory statement, pp. 1–2.

[24] Explanatory statement, p. 2.

[25] See, Parliamentary Joint Committee on Human Rights, Biosecurity (Human Biosecurity Emergency) (Human Coronavirus with Pandemic Potential) (Emergency Requirements) Amendment Determination (No. 2) 2020 [F2020L00594] and Biosecurity (Human Biosecurity Emergency) (Human Coronavirus with Pandemic Potential) Variation (Extension) Instrument 2020 [F2020L00574], Report 7 of 2020; [2020] AUPJCHR 92.

[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] 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].

[31] 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)].

[32] Biosecurity (Human Biosecurity Emergency) (Human Coronavirus with Pandemic Potential) (Emergency Requirements for Cruise Ships) Determination 2020 [F2020C00809].

[33] Biosecurity (Human Biosecurity Emergency) (Human Coronavirus with Pandemic Potential) (Overseas Travel Ban Emergency Requirements) Determination 2020 [F2020C00870].