Bills Digest no. 105 2007–08
Quarantine Amendment (National Health Security) Bill
This Digest was prepared for debate. It reflects the legislation as
introduced and does not canvass subsequent amendments. This Digest
does not have any official legal status. Other sources should be
consulted to determine the subsequent official status of the
Contact officer & copyright details
Quarantine Amendment (National
Health Security) Bill 2008
Date introduced: 19 March 2008
House: House of Representatives
Portfolio: Health and Ageing
formal parts on Royal Assent and operative parts 28 days after
relevant links to the Bill, Explanatory Memorandum and
second reading speech can be accessed via BillsNet, which is at
When Bills have been passed they can be found at ComLaw, which is
The Bill introduces requirements
for vaccinations and other prophylaxis; related health certificates; and
charges relating to the prescribed health measures undertaken in complying with the
proposed legislative requirements for travellers.
information derives from the World Health Organisation s web-site,
from which further information is available.
2005 is an international agreement aimed at protecting
international public health security by controlling the spread of
infectious diseases in ways that avoid unnecessary interference
with international trade and traffic. Once adopted by the Health
Assembly of the World Health Organisation (WHO), the IHR 2005 is
legally binding on all WHO States Parties that neither rejected nor
filed a reservation to the IHR 2005 by 15 December 2006. The IHR 2005 came into
force on 15 June 2007. Australia has neither rejected nor filed an
objection to the IHR 2005.
The International Health Regulations (the IHR), originally
adopted in 1969, was a means to control cholera, plague, yellow
fever, smallpox, relapsing fever and typhus. The IHR was updated in
1973 and 1981, and the number of notifiable diseases was reduced to
cholera, plague and yellow fever.
The IHR was then substantially
revised in 2005, significantly broadening its scope to include all
public health emergencies of international concern. The IHR 2005
requires States Parties to develop particular minimum core public
health capacities to detect, assess, and notify the WHO of health
emergencies that are of international concern.
The provisions of the IHR 2005 particularly relevant to the Bill
are briefly discussed here. Please note that the full text of these
provisions is contained in the Appendix to this Digest.
Article 3 sets out the principles of the IHR
2005. Importantly, it provides that the IHR 2005 be implemented
with full respect for people s dignity, human rights and
Article 30 relates to travellers under public
health observation. It provides that, subject to Article 43 (below)
or as authorised in applicable international agreements, a
traveller who is suspected of posing a public health risk and
placed under observation on arrival, may continue on his or her
travel if that traveller does not pose an imminent public health
risk and the proper authority at the traveller s destination is
informed of their expected arrival. In addition, the traveller must
report to that proper authority on arrival.
Article 43 relates to health measures that
States Parties may implement in response to specific public health
risks or public health emergencies that are of international
concern. In particular, it provides that States Parties may
implement such health measures to attain the same or a higher level
of health protection than WHO recommends or which are otherwise
prohibited under Articles 25 (ships and aircraft in transit), 26
(civilian lorries, trains and coaches in transit), 30 (travellers
under public health observation), 33 (goods in transit), paragraphs
28(1), 28(2) (ships and aircraft at points of entry), or 31(1)(c)
(health measures as condition of entry of travellers) of the IHR
2005. However, those health measures must be the least restrictive
measures that may be taken in the circumstances and consistent with
the IHR 2005.
In addition, Article 43 lists the factors upon which States
Parties may determine whether to implement health measures under
paragraphs 43(1) (above), or additional health measures under
paragraphs 23(2) (below), 27(1), 28(2) and (31)(2)(c) (below) of
the IHR 2005. These factors are scientific principles; available
scientific evidence of a risk to human health (where this is
unavailable information from WHO and other relevant
intergovernmental and international organisations); as well as WHO
The State Party must review its implementation of such health
measure within three months of its implementation.
If implementation of a health measure by a State Party
significantly interferes with international traffic (for example,
delay or refusal of entry or departure of international travellers;
and such things as baggage, cargo and conveyances for more than 24
hours), that State Party must inform WHO of the health measure and
justify the implementation of that health measure to WHO within 48
hours of implementation (unless covered by a recommendation made by
WHO). WHO will
then consult with and share the information with other States
Parties, after which WHO may ask the implementing State Party to
reconsider its health measure. States Parties affected by the
implementation of a health measure may ask the implementing State
Party to consult with them to reach a mutually acceptable
Article 23 relates to health measures on
arrival to and departure from a country. In trying to assess
whether there is evidence of a public health risk, a State Party
may obtain information about a traveller; the traveller s
destination and contact details; the traveller s itinerary and
health documents; as well as conduct the least invasive form of
medical examination of the traveller. The State Party may also
inspect baggage; cargo; and conveyances, among other things.
If there is evidence of a public health risk, the State Party
may implement additional health measures consistent with the IHR
2005. In general, this must be implemented:
- on a case by case basis
- by the least intrusive and invasive means available
- with minimal risk of disease transmission, and
- with the traveller s prior express informed consent under the
law and international obligations of the State Party.
The traveller must be informed of risks
associated with the vaccination or prophylaxis, or the
Article 31 relates to the entry of travellers
into a country. In general, a State Party must not require invasive
medical examination, vaccination or other prophylaxis as a
condition of a traveller s entry into a country. However, a State
Party may require medical examination, vaccination or other
prophylaxis (or proof thereof) in the following circumstances:
- when necessary, to determine whether there is a public health
- as a condition of entry
- for travellers who seek temporary or permanent residence in the
- pursuant to Article 43 (above) or Annexes 6 and 7 (below),
- pursuant to Article 23 (above).
Article 31 also addresses situations of a traveller s failure to
consent to a health measure or to provide information, which may
result in denial of entry to that traveller. In addition and
importantly, where there is evidence of an imminent public health
risk, the State Party may compel that traveller to undergo a health
measure to the extent necessary to control the risk.
Article 32 contains provisions enshrining the
importance of respect for travellers dignity, human rights and
fundamental freedoms, as well as minimising discomfort or distress
related to the health measures implemented. This includes
consideration of a traveller s gender, socio-cultural and religious
Article 42 provides that health measures must
not be delayed and must be applied in a transparent and
Article 40 relates to charges imposed for
certain prescribed health measures administered to travellers to
protect public health. Those charges are generally only imposed on
travellers seeking temporary or permanent residence in the country.
However, other charges may be imposed for health measures which are
primarily for the traveller s benefit.
Where a charge is imposed, there must only be one tariff and it
must be published no less than 10 days before any levy is made (and
with which the charge must conform); the charge not exceed the
actual cost of the health measure administered and must be levied
States Parties may seek reimbursement for expenses related to
health measures provided from conveyance operators or owners
(relating to their employees) and from applicable insurance
However, travellers and conveyance operators must not be denied
the ability to leave the country pending payment of such
Article 45 deals with travellers personal
Annex 6 sets out the requirements for
vaccinations, prophylaxis and related certificates. Vaccines and
prophylaxis must be of suitable quality and approved by WHO. Such
approval is necessary for validity of certificates verifying
vaccination or prophylaxis for individual people. Annex 6 also sets
out the procedural requirements for such certificates, for example,
language and signature requirements. Importantly, where a
supervising clinician opines that the vaccination or prophylaxis is
contraindicated for medical reasons, the supervising clinician must
give the person concerned the reasons underlying that opinion, as
well as inform the person of risks associated with non-vaccination
or non-administration of prophylaxis in accordance with paragraph
23(4) of the IHR 2005.
Annex 7 sets out the requirements of
vaccination or prophylaxis for specific diseases, which to date
only relates to yellow fever.
Yellow fever is a short lasting viral disease that is primarily
transmitted by mosquitos, whose symptoms vary in severity including a sudden onset
of fever, muscle pain and nausea through to bleeding, jaundice and
Yellow fever has caused large
epidemics and is currently endemic in 32 African and 11 Central and
South American countries.
According to WHO, vaccination is the
most useful and effective way to prevent yellow fever and mass
vaccination campaigns have been highly successful in doing so in
The Commonwealth was granted an express power to make laws with
respect to quarantine pursuant to section 51(ix) of the
Commonwealth of Australia Constitution Act 1901 (the
The principal Act under section 51(ix) is the Quarantine Act 1908 (Cth) (the
Quarantine Act). Quarantine is defined in section 4 of the
Quarantine Act as having:
measures for the inspection, exclusion, detention, observation,
segregation, isolation, protection, treatment, sanitary regulation,
and disinfection of vessels, installations, persons, goods, things,
animals, or plants, and having as their object the prevention of
the introduction or spread of diseases or pests affecting human
beings, animals, or plants.
The power to make laws with respect to quarantine is a
concurrent power, which means that both the Commonwealth and the
States may make laws with respect to this subject matter. However,
under section 109 of the Constitution, any law made by the States
regarding quarantine will be inoperative to the extent of being
inconsistent with the Commonwealth law.
The Commonwealth government is responsible for quarantine
controls at points of entry to Australia, for example, airports and
Although the Australian Quarantine and Inspection Service (AQIS)
generally administers the Quarantine Act, its responsibilities in relation to
human quarantine are limited to administering specific human
quarantine functions at Australian international air and sea
The Department of Health and Ageing (the DH&A) is
responsible for developing and maintaining human quarantine and
public health policy in Australia.
According to the DH&A website:
The purpose of these activities is to allow for
the identification and surveillance of persons who have been
potentially exposed to a quarantinable disease, the provision of
appropriate medical treatment if necessary, and the application of
public health measures to prevent the outbreak of any of the
quarantinable diseases in Australia.
The human diseases that are subject to quarantine controls in
- yellow fever
- viral haemorrhagic fever
- SARS, and
- avian influenza in humans.
However, there is a third Commonwealth Government
Department that may be involved the Department of Immigration and
Citizenship (DIAC). DIAC administers the Migration Act
1958 (among other related legislation) and manages the entry
of people into Australia, including immigration and determining
It is noted that there already are health
requirements for temporary and permanent visa applicants. In addition, visa
applicants are generally responsible for paying expenses of health
examinations involved, unless the visa applicant is an accepted Refugee or
Special Humanitarian Program applicant in subclass 201, 202, 203 or
Australia had played a significant role in contributing to the
IHR 2005 and is a State Party to it.
In the 2004-05 Budget, the government allocated $1.6 million
over three years to develop national health security legislation.
This coincided with Australia agreeing to adopt the IHR 2005 in May
On 8 August 2006, the
National Interest Analysis for the IHR 2005 was tabled in
Parliament and on 14 August 2006, the Joint Standing Committee
on Treaties held a public hearing on the IHR 2005. All relevant
Commonwealth Ministers have now formally approved the adoption of
the IHR 2005.
The Bill is part of a package of new national health security
legislation, which specifically addresses requirements under the
IHR 2005 regarding vaccinations, related health certificates and
The position of significant interest groups on the specific
provisions of this Bill was not ascertainable at the time of
writing. It is noted that there is no information in the Second
Reading Speech or in the Explanatory Memorandum to the Bill on
what, if any, consultation occurred in relation to the Bill.
However, it is noted that there had been a review of Australia s
human quarantine provisions in the Quarantine Act in 2000
undertaken by what was then the Department of Health and Aged Care
According to the
Human Quarantine Final Review (the Final Report), some
submissions received in relation to human rights considerations of
the Review commented that:
- protecting public health was of paramount importance
- it was necessary to incorporate human rights considerations
into the legislation, and
- although detention could be enforced, treatment could not be
According to the Review:
The Quarantine Act 1908 confers broad and
sweeping powers that could affect individual and collective human
rights. The emphasis is on the restriction of the movement of
individuals and communities with general powers to compel the
individual to do whatever is required to halt or contain the spread
of disease, all without the right of appeal.
The International Covenant on Civil and Political
Rights, to which Australia is a signatory, advocates for civil
liberty and is against arbitrary detention. Pursuant to this
Convention, any breach of an individual s civil liberty should be
underpinned by a legislative regime that is clear and accountable.
The legislation should provide limits and conditions on the nature
of the intervention while at the same time providing appropriate
checks and balances such as review and appeal processes. 
The Review concluded that since Australia was a party to the
International Covenant on Civil and Political Rights, it should,
where possible, ensure that the Quarantine Act is consistent with
the principles of that Covenant. The Review recommended that a practical review
and appeal process should be implemented in relation to human
quarantine only and further advice was sought as to the most
appropriate system. The then Minister for Health approved the final report
of the Review on 20 December 2000 and some work on implementation
of the Review s recommendations commenced in 2001. It is unclear as to how far that
work had proceeded.
The Review s findings and recommendations presumably reflect the
concerns of some stakeholders in relation to the administration of
vaccines and other prophylaxis to travellers entering Australia.
The Senate Standing Committee for the Scrutiny of Bills noted
the Bill and has not made any comments on it.
The Explanatory Memorandum does not clearly state what the
financial implications of the Bill would be if any.
However, there would be financial implications for those who
will bear the costs of health measures administered to them those
people seeking temporary or permanent residence in Australia,
including people in a financially disadvantaged position, for
example, some migrants, refugees and humanitarian entrants in categories that
are not recognised for support.
The key issues in relation to the Bill are as follows.
Does the Bill comply with the IHR 2005?
How will the proposed provisions in the Bill affect the civil
and political liberties of those people to whom the Bill applies,
particularly in relation to:
- individuals consent to health measures administered to
- involuntary detention issues associated with quarantine,
- costs of health measures being borne by disadvantaged
How to balance the need to protect national
health security vis a vis protecting individual rights?
These issues are discussed in the relevant parts of the Main
provisions section of this Digest.
Schedules 1 and 2 of the Bill propose amendments to the
Quarantine Act, of which only the major ones will be addressed in
The amendments proposed in Schedule 1 would include
into the Quarantine Act.
Currently, section 75 of the Quarantine Act provides that a
quarantine officer may require a person to be vaccinated or
inoculated with any prophylactic or curative vaccine.
Items 2-4 in the Bill propose to
amend section 75 of the Quarantine Act by enabling
the use of other prophylaxis, in addition to vaccines. It is
proposed that a quarantine officer may require a person to submit
himself or herself to vaccination or administration of other
prophylaxis only if the IHR 2005 does not preclude that
- the quarantine officer opines that the health measure is
necessary to prevent the spread of a quarantinable disease (see
list of diseases subject to quarantine control above), or
- the vaccine or prophylaxis is listed in Annex 7 of the IHR 2005
(referred to on page 7 of the Digest).
The Bill also proposes that the vaccine or other prophylaxis
administered to a person (including related certificates) must
conform to Annexes 6 and 7 of the IHR 2005 (referred to on page 7
of the Digest).
It is submitted in the Explanatory Memorandum that it is
recognised that there may be situations where people would not
agree to being vaccinated or having other prophylaxis administered
to them, such as for religious or medical reasons. It is further submitted in the
Explanatory Memorandum that the quarantine officer can take those
reasons into account and that where a person refuses vaccination or
other prophylaxis under the Act, the quarantine officer would make
his or her decision on the advice of a qualified medical
However, it is noted that the Bill does not amend subsections
75(1A) and (1B) of the Quarantine Act, which provide that people
who refuse to be vaccinated or have other prophylaxis administered
to them, where required under section 75, are guilty of a strict
liability offence, punishable by 20 penalty units ($2 200).
The Quarantine Act and the Bill are silent as to how such a
situation will actually be handled, for example, how to reconcile a
situation where the legislation provides for strict liability
offences when a medical officer may advise that no vaccination
should be administered in the particular circumstances.
Paragraphs 23(3)-(5) of the IHR 2005
place much importance on travellers informed consent to
examinations, vaccinations, prophylaxis and health measures, as
well as the need to inform travellers of any risk associated with
the administration and non administration of vaccines and other
prophylaxis. This is not clearly reflected in the Bill.
Paragraph 31(2) of the IHR 2005, on
the other hand, provides for travellers to be compulsorily
vaccinated or have other prophylaxis administered to them if there
is evidence of an imminent public health risk, and would deny entry to
travellers who do not consent. While clause 31(2) does refer to
options other than vaccines and other prophylaxis to be used if
there is evidence of an imminent public health risk, including:
the least invasive and intrusive medical
examination that would achieve the public health objective ,
the Bill does not.
It is also noted that the Explanatory Memorandum says that:
- there may be cases where there is a broader public health
interest in reducing the spread of disease in Australia, and
- the proposed provisions enabling quarantine officers to require
people to be vaccinated or administered other prophylaxis is for
extraordinary situations .
The term extraordinary situations is not defined
in the Explanatory Memorandum.
In addition and importantly, the Bill does not
propose an appeal process in relation to decisions to administer
vaccine or other prophylaxis in the absence of consent.
While acknowledging that there are difficulties in finding a
balance between individual human rights and national health
security, it is noted that items 2-4 of the Bill
propose wide discretionary powers but remain silent on protections
relating to the exercise of those powers. It appears that
operational matters relating to the exercise of these powers may be
left to departmental policies and decision making.
The amendments proposed in Schedule 2 relate to charges for
human quarantine measures and article 40 of the IHR 2005 (see
In particular, item 9 of the Bill proposes to
insert new sections 64A-64D into the Quarantine
Proposed subsection 64A(1) would define
prescribed health measure as a health measure relating to a
traveller that the Commonwealth provides under the:
- Quarantine Act
- Migration Act, or
- any other Commonwealth law,
In addition, proposed subsection 64A(2) would
provide that the relevant health measures are:
- medical examinations to determine a traveller s health
- generally, vaccination or other prophylaxis administered to a
traveller on entering the country
- restricting the traveller s activities, or isolating the
traveller, to prevent the disease from spreading
- health measure applied to the traveller s personal
- issuing the traveller with a certificate verifying the
administration of the above health measures.
The effect of proposed subsection
64A(3) would be that if there is not at least 10 days
notice of the requirement to be vaccinated or to have other
prophylaxis administered, then the health measure that is
administered to a traveller would not be chargeable under the
In addition, the effect of subsection
64A(4) would be that if a traveller is isolated or has his
or her activities restricted to prevent disease from spreading, the
following will not be subject to charge under proposed
- treatment for the disease or any other medical condition other
than what is listed in proposed subsection 64A(2),
- any other benefit given to the traveller solely for his or her
Proposed section 64B would define travellers , permanent
residence , temporary residence , as well as being in Australia for
transit purposes only . The definitions of these terms are relevant
for proposed sections 64C and 64D.
Notably, paragraph 64B(1)(b) lists
the classes of people who would not fall within the definition of
traveller including those people who have been detained as unlawful
under section 189 of the Migration Act 1958. In summary,
the Migration Act requires people who are not Australian
citizens and who are unlawfully in Australia to be detained this is
otherwise known as Australia s mandatory detention policy. People
considered unlawfully in Australia include those people who have
arrived in Australia without a visa, overstayed their visa, or had
their visa cancelled.
It would also appear that under subparagraph 64B(1)(b)(i) and
subsection 64B(2), people who are immigration cleared under
subsection 166(1) of the Migration Act and who have
been properly notified of prescribed health measure requirements
would fall within the definition of traveller and therefore may be
subject to charges for those health measures.
The effect of proposed subsection 64C(1) is
that the Commonwealth is solely liable to pay for expenses of
administrating a prescribed health measure to a traveller who is
not seeking temporary or permanent residence in Australia.
The effect of proposed subsection 64C(2) is
that where the traveller seeks temporary or permanent residence in
Australia, only the Commonwealth is liable to pay for expenses of
administering a prescribed health measure to that traveller, unless
the liability conforms with the tariff under proposed
section 64D (see below).
Proposed subsection 64C(3) would allow for
reimbursement of these expenses from:
- (where the traveller enters Australia as a crew member,
including the master, of a vessel) the master, owner or agent of
that vessel, or
- an applicable insurance source.
Under proposed section 64D, the Minister may
make a tariff by legislative instrument, which sets out the amount
to be paid for administering a prescribed health measure to a traveller seeking
temporary or permanent residence in Australia. The amount set out
must not exceed how much it actually costs to administer the
prescribed health measure and will only take effect on or after the
tenth day after registration under the Legislative Instruments
Items 10-20 of the Bill propose amendments to
section 86E of the Quarantine Act.
Currently, section 86E relates to the Minister s determinations
and discretionary powers in relation to fees and deposits.
The proposed amendments are related to and support the new
provisions proposed by item 9. For example,
proposed amendments would:
- ensure that late payments do not apply to fees relating to a
prescribed health measure (items 15-17) this is
consistent with requirements under the IHR 2005 that fees relating
to administering prescribed health measures do not exceed the
actual costs of doing so, and
- enable the Minister to remit or refund part or all of the fee
relating to a prescribed health measure if satisfied that there are
exceptional circumstances for doing so (item
The group of people who would be most affected by proposed
amendments in Schedule 2 of the Bill are travellers who seek
temporary or permanent residence in Australia, because it is this
group of people who, subject to what appears to be non-compellable
and non-reviewable ministerial discretion, would have to pay the
costs of prescribed health measures administered to them. As
previously mentioned, it appears that this group would include
people who are in an extremely financially disadvantaged position,
such as some migrants, refugees and humanitarian entrants (although
it is noted that some immigrants will be exempted).
It is noted that the Minister has discretion to:
- prescribe classes of people who do not fall within the
definition of traveller and who would then not be subject to be
charged for prescribed health measures administered to them:
proposed subparagraph 64B(1)(b)(iv), and
- waive or remit such charges in exceptional circumstances:
proposed subsection 86E(2H).
However, it is also noted that the term exceptional
circumstances in proposed new subsection 86E(2H)
relating to ministerial discretion is not defined in the Bill.
Importantly, it is further noted that the Bill is silent in
relation to appeal processes in relation to the exercise of the
ministerial discretion and decisions made under Schedule 2 of the
The Bill is generally and technically consistent with the IHR
The need to protect national health is of enormous
However, there are concerns regarding the balancing of needs
which would be inconsistent in those particular situations to which
the Bill would apply, the contervailing needs being:
- protecting national health, and
- protecting individual civil rights.
Administering vaccines and other prophylaxis can be an invasive
prescribed health measure. Yet:
- as previously mentioned, there is no information in the Second
Reading Speech or in the Explanatory Memorandum to the Bill on
what, if any, consultation occurred in relation to the Bill
- the Bill does not specify the detail of factors that must be
considered in deciding whether submitting a person to vaccination
or other prophylaxis is necessary to prevent the spread of a
quarantinable disease, or whether there are grounds for exempting
- arguably, the Bill does not adequately address situations
involving people s right to refuse consent to these measures
- the Bill is silent on appeal processes relating to decisions
made about whether to administer such measures, and
- the roles played by quarantine officers and medical
practitioners (both groups being employed by two different
departments) in this process remains unclear.
As mentioned above, it appears that the proposed provisions
relating to charges for the administration of prescribed health
measures could apply to financially disadvantaged groups of people,
such as certain migrants, refugees and humanitarian entrants. Yet,
- there is no information in the Second Reading Speech or in the
Explanatory Memorandum to the Bill on what, if any, consultation
occurred in relation to the Bill
- the Bill is silent as to the detail of factors to be considered
by the Minister in deciding whether to remit or waive the charges
in any situation, and
- the Bill is silent on appeal processes relating to
administrative decisions, such as whether to charge a person for
administration of a prescribed health measure.
The Bill is vocal in its commitment to principles
set out in article 32 of the IHR 2005 (see above). These principles
are of paramount importance to particularly vulnerable people
seeking to enter Australia, such as refugees and humanitarian
entrants who have fled persecution in their home countries.
However, the Bill remains silent as to how that commitment would
operate in practice.
Much appears to be left to the discretion of
government departments and officers.
Interestingly, given the potential significant
impact on permanent and temporary visa applicants, the Bill does
not address how its proposed provisions would work in with current
migration legislation, policies and practices administered and
managed by DIAC.
The Government has not, however, indicated any
intention to undertake further consultation with significant and
relevant stakeholders. Such a process may assist in addressing
these concerns in more detail, thereby refining the Bill.
The following provisions of the IHR 2005 are particularly
relevant to the Bill.
1. The implementation of these Regulations shall
be with full respect for the dignity, human rights and fundamental
freedoms of persons.
2. The implementation of these Regulations shall
be guided by the Charter of the United Nations and the Constitution
of the World Health Organization.
3. The implementation of these Regulations shall
be guided by the goal of their universal application for the
protection of all people of the world from the international spread
4. States have, in accordance with the Charter of
the United Nations and the principles of international law, the
sovereign right to legislate and to implement legislation in
pursuance of their health policies. In doing so they should uphold
the purpose of these Regulations.
Subject to Article 43 or as authorized in
applicable international agreements, a suspect traveller who on
arrival is placed under public health observation may continue an
international voyage, if the traveller does not pose an imminent
public health risk and the State Party informs the competent
authority of the point of entry at destination, if known, of the
traveller s expected arrival. On arrival, the traveller shall
report to that authority.
1. These Regulations shall not preclude States
Parties from implementing health measures, in accordance with their
relevant national law and obligations under international law, in
response to specific public health risks or public health
emergencies of international concern, which:
(a) achieve the same or greater level of health
protection than WHO recommendations; or
(b) are otherwise prohibited under Article 25,
Article 26, paragraphs 1 and 2 of Article 28, Article 30, paragraph
1(c) of Article 31 and Article 33,
provided such measures are otherwise consistent
with these Regulations.
Such measures shall not be more restrictive of
international traffic and not more invasive or intrusive to persons
than reasonably available alternatives that would achieve the
appropriate level of health protection.
2. In determining whether to implement the health
measures referred to in paragraph 1 of this Article or additional
health measures under paragraph 2 of Article 23, paragraph 1 of
Article 27, paragraph 2 of Article 28 and paragraph 2(c) of Article
31, States Parties shall base their determinations upon:
(a) scientific principles;
(b) available scientific evidence of a risk to
human health, or where such evidence is insufficient, the available
information including from WHO and other relevant intergovernmental
organizations and international bodies; and
(c) any available specific guidance or advice from
3. A State Party implementing additional health
measures referred to in paragraph 1 of this Article which
significantly interfere with international traffic shall provide to
WHO the public health rationale and relevant scientific information
for it. WHO shall share this information with other States Parties
and shall share information regarding the health measures
implemented. For the purpose of this Article, significant
interference generally means refusal of entry or departure of
international travellers, baggage, cargo, containers, conveyances,
goods, and the like, or their delay, for more than 24 hours.
4. After assessing information provided pursuant
to paragraph 3 and 5 of this Article and other relevant
information, WHO may request that the State Party concerned
reconsider the application of the measures.
5. A State Party implementing additional health
measures referred to in paragraphs 1 and 2 of this Article that
significantly interfere with international traffic shall inform
WHO, within 48 hours of implementation, of such measures and their
health rationale unless these are covered by a temporary or
6. A State Party implementing a health measure
pursuant to paragraph 1 or 2 of this Article shall within three
months review such a measure taking into account the advice of WHO
and the criteria in paragraph 2 of this
7. Without prejudice to its rights under Article
56, any State Party impacted by a measure taken pursuant to
paragraph 1 or 2 of this Article may request the State Party
implementing such a measure to consult with it. The purpose of such
consultations is to clarify the scientific information and public
health rationale underlying the measure and to find a mutually
8. The provisions of this Article may apply to
implementation of measures concerning travellers taking part in
1. Subject to applicable international agreements
and relevant articles of these Regulations, a State Party may
require for public health purposes, on arrival or departure:
(a) with regard to travellers:
(i) information concerning the traveller s
destination so that the traveller may be contacted;
(ii) information concerning the traveller s
itinerary to ascertain if there was any travel in or near an
affected area or other possible contacts with infection or
contamination prior to arrival, as well as review of the traveller
s health documents if they are required under these Regulations;
(iii) a non-invasive medical examination which is
the least intrusive examination that would achieve the public
(b) inspection of baggage, cargo, containers,
conveyances, goods, postal parcels and human remains.
2. On the basis of evidence of a public health
risk obtained through the measures provided in paragraph 1 of this
Article, or through other means, States Parties may apply
additional health measures, in accordance with these Regulations,
in particular, with regard to a suspect or affected traveller, on a
case-by-case basis, the least intrusive and invasive medical
examination that would achieve the public health objective of
preventing the international spread of disease.
3. No medical examination, vaccination,
prophylaxis or health measure under these Regulations shall be
carried out on travellers without their prior express informed
consent or that of their parents or guardians, except as provided
in paragraph 2 of Article 31, and in accordance with the law and
international obligations of the State Party.
4. Travellers to be vaccinated or offered
prophylaxis pursuant to these Regulations, or their parents or
guardians, shall be informed of any risk associated with
vaccination or with non-vaccination and with the use or non-use of
prophylaxis in accordance with the law and international
obligations of the State Party. States Parties shall inform medical
practitioners of these requirements in accordance with the law of
the State Party.
5. Any medical examination, medical procedure,
vaccination or other prophylaxis which involves a risk of disease
transmission shall only be performed on, or administered to, a
traveller in accordance with established national or international
safety guidelines and standards so as to minimize such a risk.
1. Invasive medical examination, vaccination or
other prophylaxis shall not be required as a condition of entry of
any traveller to the territory of a State Party, except that,
subject to Articles 32, 42 and 45, these Regulations do not
preclude States Parties from requiring medical examination,
vaccination or other prophylaxis or proof of vaccination or other
(a) when necessary to determine whether a public
health risk exists;
(b) as a condition of entry for any travellers
seeking temporary or permanent residence;
(c) as a condition of entry for any travellers
pursuant to Article 43 or Annexes 6 and 7; or
(d) which may be carried out pursuant to Article
2. If a traveller for whom a State Party may
require a medical examination, vaccination or other prophylaxis
under paragraph 1 of this Article fails to consent to any such
measure, or refuses to provide the information or the documents
referred to in paragraph 1(a) of Article 23, the State Party
concerned may, subject to Articles 32, 42 and 45, deny entry to
that traveller. If there is evidence of an imminent public health
risk, the State Party may, in accordance with its national law and
to the extent necessary to control such a risk, compel the
traveller to undergo or advise the traveller, pursuant to paragraph
3 of Article 23, to undergo:
(a) the least invasive and intrusive medical
examination that would achieve the public health objective;
(b) vaccination or other prophylaxis; or
(c) additional established health measures that
prevent or control the spread of disease,
including isolation, quarantine or placing the
traveller under public health observation.
In implementing health measures under these
Regulations, States Parties shall treat travellers with respect for
their dignity, human rights and fundamental freedoms and minimize
any discomfort or distress associated with such measures, including
(a) treating all travellers with courtesy and
(b) taking into consideration the gender,
sociocultural, ethnic or religious concerns of travellers; and
(c) providing or arranging for adequate food and
water, appropriate accommodation and clothing, protection for
baggage and other possessions, appropriate medical treatment, means
of necessary communication if possible in a language that they can
understand and other appropriate assistance for travellers who are
quarantined, isolated or subject to medical examinations or other
procedures for public health purposes.
1. Except for travellers seeking temporary or
permanent residence, and subject to paragraph 2 of this Article, no
charge shall be made by a State Party pursuant to these Regulations
for the following measures for the protection of public health:
(a) any medical examination provided for in these
Regulations, or any supplementary examination which may be required
by that State Party to ascertain the health status of the traveller
(b) any vaccination or other prophylaxis provided
to a traveller on arrival that is not a published requirement or is
a requirement published less than 10 days prior to provision of the
vaccination or other prophylaxis;
(c) appropriate isolation or quarantine
requirements of travellers;
(d) any certificate issued to the traveller
specifying the measures applied and the date of application; or
(e) any health measures applied to baggage
accompanying the traveller.
2. States Parties may charge for health measures
other than those referred to in paragraph 1 of this Article,
including those primarily for the benefit of the traveller.
3. Where charges are made for applying such health
measures to travellers under these Regulations, there shall be in
each State Party only one tariff for such charges and every charge
(a) conform to this tariff;
(b) not exceed the actual cost of the service
(c) be levied without distinction as to the
nationality, domicile or residence of the traveller concerned.
4. The tariff, and any amendment thereto, shall be
published at least 10 days in advance of any levy thereunder.
5. Nothing in these Regulations shall preclude
States Parties from seeking reimbursement for expenses incurred in
providing the health measures in paragraph 1 of this Article:
(a) from conveyance operators or owners with
regard to their employees; or
(b) from applicable insurance sources.
6. Under no circumstances shall travellers or
conveyance operators be denied the ability to depart from the
territory of a State Party pending payment of the charges referred
to in paragraphs 1 or 2 of this Article.
Health measures taken pursuant to these
Regulations shall be initiated and completed without delay, and
applied in a transparent and non-discriminatory manner.
1. Vaccines or other prophylaxis specified in
Annex 7 or recommended under these Regulations shall be of suitable
quality; those vaccines and prophylaxis designated by WHO shall be
subject to its approval. Upon request, the State Party shall
provide to WHO appropriate evidence of the suitability of vaccines
and prophylaxis administered within its territory under these
2. Persons undergoing vaccination or other
prophylaxis under these Regulations shall be provided with an
international certificate of vaccination or prophylaxis
(hereinafter the certificate ) in the form specified in this Annex.
No departure shall be made from the model of the certificate
specified in this Annex.
3. Certificates under this Annex are valid only if
the vaccine or prophylaxis used has been approved by WHO.
4. Certificates must be signed in the hand of the
clinician, who shall be a medical practitioner or other authorized
health worker, supervising the administration of the vaccine or
prophylaxis. The certificate must also bear the official stamp of
the administering centre; however, this shall not be an accepted
substitute for the signature.
5. Certificates shall be fully completed in
English or in French. They may also be completed in another
language, in addition to either English or French.
6. Any amendment of this certificate, or erasure,
or failure to complete any part of it, may render it invalid.
7. Certificates are individual and shall in no
circumstances be used collectively. Separate certificates shall be
issued for children.
8. A parent or guardian shall sign the certificate
when the child is unable to write. The signature of an illiterate
shall be indicated in the usual manner by the person s mark and the
indication by another that this is the mark of the person
9. If the supervising clinician is of the opinion
that the vaccination or prophylaxis is contraindicated on medical
grounds, the supervising clinician shall provide the person with
reasons, written in English or French, and where appropriate in
another language in addition to English or French, underlying that
opinion, which the competent authorities on arrival should take
The supervising clinician and competent
authorities shall inform such persons of any risk associated with
non-vaccination and with the non-use of prophylaxis in accordance
with paragraph 4 of Article 23.
10. An equivalent document issued by the Armed
Forces to an active member of those Forces shall be accepted in
lieu of an international certificate in the form shown in this
(a) it embodies medical information substantially
the same as that required by such form; and
(b) it contains a statement in English or in
French and where appropriate in another language in addition to
English or French recording the nature and date of the vaccination
or prophylaxis and to the effect that it is issued in accordance
with this paragraph.
[Form of certificate]
This certificate must be signed in the hand of the
clinician, who shall be a medical practitioner or other authorized
health worker, supervising the administration of the vaccine or
prophylaxis. The certificate must also bear the official stamp of
the administering centre; however, this shall not be an accepted
substitute for the signature.
Any amendment of this certificate, or erasure, or
failure to complete any part of it, may render it invalid.
The validity of this certificate shall extend
until the date indicated for the particular vaccination or
prophylaxis. The certificate shall be fully completed in English or
in French. The certificate may also be completed in another
language on the same document, in addition to either English or
1. In addition to any recommendation concerning
vaccination or prophylaxis, the following diseases are those
specifically designated under these Regulations for which proof of
vaccination or prophylaxis may be required for travellers as a
condition of entry to a State Party:
Vaccination against yellow fever.
2. Recommendations and requirements for
vaccination against yellow fever:
(a) For the purpose of this Annex:
(i) the incubation period of yellow fever is six
(ii) yellow fever vaccines approved by WHO provide
protection against infection starting 10 days following the
administration of the vaccine;
(iii) this protection continues for 10 years;
(iv) the validity of a certificate of vaccination
against yellow fever shall extend for a period of 10 years,
beginning 10 days after the date of vaccination or, in the case of
a revaccination within such period of 10 years, from the date of
(b) Vaccination against yellow fever may be
required of any traveller leaving an area where the Organization
has determined that a risk of yellow fever transmission is
(c) If a traveller is in possession of a
certificate of vaccination against yellow fever which is not yet
valid, the traveller may be permitted to depart, but the provisions
of paragraph 2(h) of this Annex may be applied on arrival.
(d) A traveller in possession of a valid
certificate of vaccination against yellow fever shall not be
treated as suspect, even if coming from an area where the
Organization has determined that a risk of yellow fever
transmission is present.
(e) In accordance with paragraph 1 of Annex 6 the
yellow fever vaccine used must be approved by the Organization.
(f) States Parties shall designate specific yellow
fever vaccination centres within their territories in order to
ensure the quality and safety of the procedures and materials
(g) Every person employed at a point of entry in
an area where the Organization has determined that a risk of yellow
fever transmission is present, and every member of the crew of a
conveyance using any such point of entry, shall be in possession of
a valid certificate of vaccination against yellow fever.
(h) A State Party, in whose territory vectors of
yellow fever are present, may require a traveller from an area
where the Organization has determined that a risk of yellow fever
transmission is present, who is unable to produce a valid
certificate of vaccination against yellow fever, to be quarantined
until the certificate becomes valid, or until a period of not more
than six days, reckoned from the date of last possible exposure to
infection, has elapsed, whichever occurs first.
(i) Travellers who possess an exemption from
yellow fever vaccination, signed by an authorized medical officer
or an authorized health worker, may nevertheless be allowed entry,
subject to the provisions of the foregoing paragraph of this Annex
and to being provided with information regarding protection from
yellow fever vectors. Should the travellers not be quarantined,
they may be required to report any feverish or other symptoms to
the competent authority and be placed under surveillance.
. Health measure
is defined as procedures applied to prevent the spread of disease
or contamination; a health measure does not include law enforcement
or security measures :
. See http://www.who.int/csr/ihr/en/.
For further discussion on the IHR 2005, see also
Buckmaster. L and Thomas. M, National Health Security Bill 2007 ,
Digest, Parliamentary Library, Canberra, no. 53, 2007
. Public health
risk means a likelihood of an event that may affect adversely the
health of human populations, with an emphasis on one which may
spread internationally or may present a serious and direct danger :
IHR 2005 Article 1.
27 May 2008
Bills Digest Service
© Commonwealth of Australia
This work is copyright. Except to the extent of uses permitted
by the Copyright Act 1968, no person may reproduce or transmit any
part of this work by any process without the prior written consent
of the Parliamentary Librarian. This requirement does not apply to
members of the Parliament of Australia acting in the course of
their official duties.
This work has been prepared to support the work of the Australian
Parliament using information available at the time of production.
The views expressed do not reflect an official position of the
Parliamentary Library, nor do they constitute professional legal
Feedback is welcome and may be provided to: firstname.lastname@example.org. Any
concerns or complaints should be directed to the Parliamentary
Librarian. Parliamentary Library staff are available to discuss the
contents of publications with Senators and Members and their staff.
To access this service, clients may contact the author or the
Library’s Central Entry Point for referral.
Back to top