New and Amended Commonwealth Laws
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Contents
1. Biosecurity Act 2015 (Cth)
1.1 Powers under the Biosecurity Act 2015 (Cth)
1.2 Determinations under the Biosecurity Act 2015 (Cth)
1.3 Directions under the Biosecurity Act 2015 (Cth)
1.4 Penalties for breaching a Determination or Direction made under sections 477 or 488 of the Biosecurity Act 2015 (Cth)
1.5 Human biosecurity control orders under the Biosecurity Act 2015 (Cth)
1. Biosecurity Act 2015 (Cth)
Under the Biosecurity Act 2015 (Cth), once the Governor-General declares under section 475 that a human biosecurity emergency exists subject to the requirements of that provision, the Health Minister is empowered to exercise the human biosecurity emergency powers found in Division 2 of Part 2 of the Act. These powers can only be exercised by the Minister personally, and include the power to make determinations mandating emergency requirements during the human biosecurity emergency period (section 477) and to give Directions during the period (section 478).
The Governor-General may extend the human biosecurity emergency period under section 476 of the Act. The current human biosecurity emergency period was extended on 4 September 2020 and expires on 17 December 2020 unless it is extended.
Note: full consideration on the impact of the Biosecurity Act 2015 (Cth) is beyond the scope of this research. We recommend that further resources be directed to reviewing the legislation in full.
1.2 Determinations under the Biosecurity Act 2015 (Cth)
1.2.1 Background
Under the Biosecurity Act 2015 (Cth), once a human biosecurity emergency has been declared, the Health Minister may make Determinations under section 477 of the Act, creating emergency requirements during the human biosecurity emergency period that:
- are necessary to prevent of control the entry, emergence or spread of the relevant human disease into Australia;
- are necessary to prevent the spread of the disease to another country;
- are necessary to give effect to a recommendation made by the World Health Organisation to the Health Minister;
- apply to persons, goods or conveyances that are entering or leaving specified places;
- restrict or prevent the movement of persons, goods or conveyances in between specified places; and
- require specific places to be evacuated.
Determinations under section 477 of the Act must satisfy certain requirements, such as being appropriate and adapted to achieve its stated purpose, and being no more restrictive or intrusive than is required in the circumstances. Under section 477(5) of the Act, the Determinations prevail over any other Australian law. The Determinations made under section 477 of the Act cease to have effect at the end of the human biosecurity emergency period unless revoked earlier.
1.2.2. Determinations under the Biosecurity Act 2015 (Cth) in response to COVID-19
The Health Minister has so far made the following Determinations under the Biosecurity Act 2015:
Biosecurity (Entry Requirements—Human Coronavirus with Pandemic Potential) Determination 2020: effective from 16 October 2020, which requires individuals entering Australia from New Zealand to provide a written statement that they had only been in New Zealand in the past 14 days and other personal information including whether they have had been exposed to, or exhibited signs or symptoms of COVID-19.
Biosecurity (Human Biosecurity Emergency) (Human Coronavirus with Pandemic Potential) (Emergency Requirements for Cruise Ships) Determination 2020: effective from 2 September 2020, it prohibits international cruise ships from entering Australian ports unless an exemption applies.
Biosecurity (Human Biosecurity Emergency) (Human Coronavirus with Pandemic Potential) (Overseas Travel Ban Emergency Requirements) Determination 2020: effective from 18 September 2020 which prohibits Australian citizens and permanent residents from undertaking international travel via sea or air unless an exemption applies.
Biosecurity (Exit Requirements) Determination 2020 (Cth): effective from 2 April 2020, which establishes a requirement to be screened for COVID-19 if a person is leaving a major Australian International airport on a flight bound for any of the following countries: Cook Islands; Fiji; Nauru; New Caledonia; Papua New Guinea; Samoa; Solomon Islands; Timor‑Leste; Tonga; Vanuatu.
Biosecurity (Human Biosecurity Emergency) (Human Coronavirus with Pandemic Potential) (Emergency Requirements—Retail Outlets at International Airports) Determination 2020: effective from 31 July 2020, which prohibits retail outlets from operating within International Airports, unless an exemption applies.
1.2.3. Amendment to the Privacy Act 1988
The Privacy Amendment (Public Health Contact Information) Act 2020 amends the Privacy Act 1988 to provide stronger privacy protections for users of the COVIDSafe app and the data used and stored through the app. The Privacy Act 1988 has been amended to create offences in relation to prohibited usage of COVIDSafe app data including the dealing of data without the user's consent; non-permitted collection, use or disclosure of COVID app data; retaining or disclosing of uploaded data outside Australia; and decrypting encrypted COVID app data. The amendments also ensure that data stored on the COVIDSafe app are considered personal information, and attract the requisite obligations and protections associated with such status.
1.3 Directions under the Biosecurity Act 2015 (Cth)
1.3.1 Background
Under the Biosecurity Act 2015 (Cth), once a human biosecurity emergency has been declared, under section 478 the Health Minister may also make Directions to any person that:
- are necessary to prevent of control the entry, emergence or spread of the relevant human disease into Australia
- are necessary to prevent the spread of the disease to another country;
- are necessary to give effect to a recommendation made by the World Health Organisation to the Health Minister;
- directs a person to close premises or prevent access to premises; and
- gives effect to or enforces a Determination made under section 477.
Directions under section 478 must satisfy certain requirements, such as being appropriate and adapted to achieve its stated purpose, and being no more restrictive or intrusive that is required in the circumstances. Under section 478(4), the Directions prevail over any other Australian law, but must not be made against an officer or employee of a State or Territory or State or Territory body unless the Direction is made in accordance with an agreement with that State or Territory or body. The Directions made under section 478 cease to have effect at the end of the human biosecurity emergency period unless revoked earlier.
It is unclear if any Directions have been made, as they are not required to be published.
1.4 Penalties for breaching a Determination or Direction made under sections 477 or 488 of the Biosecurity Act 2015 (Cth)
Under section 479 of the Act, a person commits an offence if a Determination or Direction applies to them, and they engage in conduct that contravenes the requirement of that Determination or Direction. The penalty for breach is imprisonment for 5 years or 300 penalty units, or both.
1.5 Human biosecurity control orders under the Biosecurity Act 2015 (Cth)
Under Part 3 of Chapter 2 of the Act, human biosecurity control orders may be made by a specified person against individuals that may have contracted a relevant human disease, such as when they are showing symptoms or have been exposed.
Human biosecurity control orders can be made in relation to the following, among other things:
- to require a person to remain for no more than 6 hours at the place they were at when the officer became satisfied that the control order should be imposed;
- to require a person to provide contact information; and
- to notify an individual of changes to contact information.
The penalty for non-compliance with a human biosecurity control order is imprisonment for 12 months or 60 penalty units, or both.
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