On 23 March 2020 the Parliament enacted the Coronavirus Economic Response Package Omnibus Act 2020 (Omnibus Act). Amongst other things, the Omnibus Act amends the Biosecurity Act 2015 to allow the Director of Human Biosecurity—being the Commonwealth Chief Medical Officer—to delegate some of his, or her, functions and powers about human biosecurity control orders. The relevant amendments commenced on 25 March 2020.
The Omnibus Act represents part of the Government’s response to the outbreak of COVID-19, which is a listed human disease under the Biosecurity Act.
Human biosecurity control orders
Under section 60 of the Biosecurity Act, a chief human biosecurity officer, a human biosecurity officer or a biosecurity officer may impose a human biosecurity control order on an individual:
- who has one or more signs or symptoms of a listed human disease
- who has been exposed to the disease or someone who shows signs or symptoms of the disease or
- who has failed to comply with a requirement for entry into Australia, in relation to the disease.
Human biosecurity control orders are not legislative instruments which must be tabled in the Parliament. There is no legislative requirement to publish information about the number made, or the biosecurity measures to which they relate. When the COVID-19 restrictions are eventually lifted there does not appear to be a mechanism by which to measure the extent to which this power was exercised.
A human biosecurity control order may require an individual to comply with certain biosecurity measures including:
- managing contacts—that is, providing contact information for any individual with whom the person has been in close proximity
- requiring the individual to report specified signs or symptoms of the listed human disease
- restricting behaviour—by requiring a person to go to, and remain at, the individual’s intended place of residence for a specified period
- risk minimisation interventions—such as requiring the person to wear specified clothing or equipment
- decontamination of an individual and/ or their personal effects
- undergoing an examination of a specified kind at a specified medical facility to determine the presence of a listed human disease
- requiring body samples for diagnosis and
- receiving a vaccination or treatment—including medication.
In addition, an individual may be required by a human biosecurity control order:
- to remain isolated at a specified medical facility
- for a specified period of no more than 28 days (although a subsequent order may be given), not to leave Australian territory on an outgoing passenger aircraft or vessel.
Where a person consents to a biosecurity measure in a human biosecurity control order the consent is to be recorded in writing where possible.
Refusal to consent
The functions and powers of the Director of Human Biosecurity arise where an individual refuses to consent to the biosecurity measure (including by withdrawing his or her consent).
In that case:
- the officer making the human biosecurity control order may request the Director of Human Biosecurity to give a direction in accordance with paragraph 72(5)(a) of the Biosecurity Act for the individual to comply with the measure
- the Director of Human Biosecurity must review both the diagnosis (if any) of the listed human disease specified in the human biosecurity control order and the nature of the biosecurity measure, taking into account the reasons that the person gives for refusing his or her consent to the measure and any other relevant matters
- having conducted that review, the Director of Human Biosecurity may give a direction for the person to comply with a biosecurity measure—or inform the person they need not comply
- a direction to comply may only be given if the Director is satisfied, on reasonable grounds, that the biosecurity measure contributes to reducing the risk of contagion of the listed human disease or the entry, emergence, establishment or spread of the listed human disease in Australian territory or a part of Australian territory.
Section 107 of the Biosecurity Act creates an offence where a human biosecurity control order has been made in respect of a person, the Director of Human Biosecurity has given a direction that the person comply with the measure and the person engages in conduct which results in the person failing to comply with the biosecurity measure which is stipulated in the control order. The maximum penalty for the offence is imprisonment for five years or 300 penalty units ($63,000), or both.
Timing of action
Where the biosecurity measure is not an isolation measure or a traveller movement measure the Director of Human Biosecurity must give the direction within 72 hours of the time the request was made. Otherwise the Director of Human Biosecurity must give the direction within 72 hours of the time the person refused to consent to the measure.
There are further actions available where an individual has been given a direction under paragraph 72(5)(a) and the person still refuses to consent to the biosecurity measure.
Right of review
A person who is directed under paragraph 72(5)(a) of the Biosecurity Act to comply with an isolation measure or a traveller movement measure under a human biosecurity control order has a right to apply to the Administrative Appeals Tribunal (AAT) for merits review of the decision. A direction under paragraph 72(5)(a) may also be reviewed under the Administrative Decisions (Judicial Review) Act 1977—provided that an application is made within seven business days from the day the decision is made (unless the court allows a longer period).
Some of the provisions of the Administrative Appeals Tribunal Act 1975 (AAT Act) are modified by the operation of the Biosecurity Act. In particular section 28 (obtaining reasons for the decision) and subsections 37(1)–(1D) of the AAT Act (about lodging documents) do not apply. Instead, the Director of Human Biosecurity must lodge the relevant documents with the AAT and the person within two days. This ensures that a person who does not consent to a biosecurity measure is afforded speedy access to review.
What Schedule 5 of the Omnibus Act does
Schedule 5 to the Omnibus Act inserted section 544A into the Biosecurity Act so that the Director of Human Biosecurity is able to delegate his or her functions and powers in relation to human biosecurity control orders to an SES employee or to an acting SES employee in the Health Department who is a human biosecurity officer. A human biosecurity officer is person who has appropriate clinical expertise and is:
- an officer or employee of the Health Department
- an officer or employee of the State or Territory body responsible for the administration of health services in a State or Territory or
- a member of the Australian Defence Force.
Given a possible increase in the number of persons suffering from COVID-19 this seems a prudent measure. Further information about the operation of the Biosecurity Act is set out in the Parliamentary Library’s COVID-19 Human Biosecurity Emergency Declaration Explainer.