Posted 07/04/2020 by Howard Maclean & Michele Brennan
This FlagPost was first published on 7 April 2020 and has been updated on 9 April 2020 to reflect an amendment to the original determination.
As set out in an earlier FlagPost (COVID-19 Human Biosecurity Emergency Declaration Explainer) in response to the COVID-19 outbreak in Australia, on 18 March 2020 the Governor-General declared that a human biosecurity emergency exists. This declaration gives the Minister for Health expansive powers to issue directions and set requirements in order to combat the outbreak.
That FlagPost provides information on the mechanics of the declaration and the Minister’s powers. The FlagPost also provides an explanation of the first two determinations that were made by the Health Minister—banning international cruise ships from entering Australian ports and banning Australian citizens and permanent residents from undertaking overseas travel.
On 26 March 2020, the Minister for Health made a third determination—the Biosecurity (Human Biosecurity Emergency) (Human Coronavirus with Pandemic Potential) (Emergency Requirements for Remote Communities) Determination 2020 (the Determination).
The Determination generally requires people to remain outside certain remote communities (‘designated areas’), subject to a series of exceptions. It commenced at 11.59 pm on 26 March 2020.
On 7 April 2020, the Minister for Health amended the Determination. The amendments commenced on 8 April 2020.
The discussion below covers the amended Determination.
Why is this needed?
The areas covered by the Determination contain remote communities with significant Indigenous populations. Aboriginal and Torres Strait Islander peoples and communities are a priority population in the Australian Health Sector Emergency Response Plan for Novel Coronavirus (COVID-19).
The Department of Health explains:
Aboriginal and Torres Strait Islander peoples and people living in remote communities are at greater risk from COVID-19. This is because:
- there are higher rates of other health issues in these communities
- it can be harder to access health care
- people in the community are very mobile and travel often
- people often rely more on outreach services in remote places.
In addition, overcrowded housing in remote communities, a result of inadequate housing stock, impacts on residents’ ability to employ social distancing measures or to self-isolate. Moreover, the interconnected nature of Indigenous populations in remote communities where kinship ties and their obligations extend to a wide cross-section of the community (and other communities) makes social distancing and isolating culturally problematic.
Exceptions to the requirement
The requirement to remain outside a designated area is subject to four general exceptions:
- the person is entering the area to escape an immediate threat to the person’s life
- the person is a member of the Australian Defence Force and is entering the area in the course of the member’s duty
- the person is a human biosecurity officer, other biosecurity official, or an official performing functions relating to public health or biosecurity, and is entering the area in the course of the person’s duty as such an official
- the person was previously outside a designated area but due to an amendment to the Determination changing the boundaries of that area, is now considered to be within the designated area.
There are another six exceptions that apply provided that the person does not have any signs or symptoms of COVID-19, has not been exposed to COVID-19 within the past 14 days without adequate personal protective precautions and has not been outside Australian territory in the past 14 days. Under current relevant state and territory public health rules (for Queensland, Western Australia, South Australia and the Northern Territory), anyone who does not meet these requirements is required to be in self-isolation or quarantine anyway. The exceptions are:
- the person has been isolated from the general public for 14 days before entering the designated area and has not had any signs or symptoms of COVID-19 over that period
- the person is entering the area primarily to engage in an essential activity (see below) that requires the person to be in the area, or is involved in the conveyance of a person entering to engage in that essential activity and either there is an urgent need for the person to engage in the essential activity or the person will enter and engage in the essential activity in a manner (agreed to by a human biosecurity officer) that will minimise their exposure to other people in the area
- the person has permission to enter the area from a relevant decision maker (see below) for that area. Relevant decision makers who are not human biosecurity officers must have regard to guidance from human biosecurity officers about who should be allowed to enter the area
- the person is transiting through the area to a destination beyond the area. The route through the area must be ‘the most direct practicable route’ and the journey must not involve the person (or anyone they are travelling with) becoming exposed to anyone else in the area
- the person is travelling between designated areas through non-designated areas, or traveling outside a designated area and returning. The person must not have been exposed to a person that did not start the journey with the entrant, and if the journey involved use of a conveyance (vehicle), the same conveyance was used for the whole journey or
- the person is moving from one designated area to another designated area adjoining each other that are across state borders.
Except for people entering after 14 days of self-isolation, or entering adjoining designated areas over state lines, people entering a designated area must take reasonable steps to minimise the extent to which anyone else in the area is exposed to the person.
Essential Activity: Essential activity includes providing: healthcare, education, domestic violence services, child protection services, policing services, emergency services, essential local government services (such as rubbish collection), Centrelink services, correctional services, or funerary services.
It also includes conducting or taking part in courts or tribunals; operating, maintaining, repairing or replacing utilities or other essential infrastructure (including telecommunication and broadcasting services); delivery of food, mail, fuel or medical supplies in the area; continuing construction of housing or transport infrastructure that was already in progress; and transporting freight to or from a place in that area.
It also includes carrying out commercial primary production in an area. Commercial primary production is defined as the production of food or products that with further process will become (at least in part) food; commercial processing of primary products to make food from them; provision of veterinary services for animals kept, used or bred for primary production purposes; aquaculture; or agribusiness. A separate exemption applies to carrying out mining operations or operations ancillary to mining operations.
As set out above, a person may only enter a designated area to perform an essential activity if there is an urgent need for the person to engage in the activity or the person will enter and engage in the activity in a manner (agreed to by a human biosecurity officer) that will minimise their exposure to other people in the area. However, the ‘urgent need’ exception does not apply to commercial primary production and mining operations, which must always be conducted in a manner approved by a human biosecurity officer to minimise exposure to other people in the area.
Relevant decision-maker: relevant decision-makers are various officeholders of the relevant states and impacted Indigenous Land Councils, listed under Schedule 2 of the Determination.
A human biosecurity officer who is an officer or employee of the Department of Health can also act as a relevant decision-maker, provided they have regard to the advice of a person listed under Schedule 2. Not all human biosecurity officers are officers of the Department of Health. The Commonwealth Chief Medical Officer can appoint members of the Australian Defence Force and other agencies as human biosecurity officers.
Some designated areas have a large number of relevant decision-makers. A designated area within the Central Land Council in the Northern Territory, for instance, has eleven classes of relevant decision-makers.
Designated areas exist in Queensland, Western Australia, South Australia, and the Northern Territory, with a full list detailed at Schedule 1 of the Determination. The areas include the majority of the Top End and Central Australia, including nearly all of the Northern Territory (except for major towns such as Alice Springs, Tennant Creek, Mataranka, Darwin and surrounds), most of the Cape York Peninsula in Queensland, and the Kimberley Region of Western Australia. In the Northern Territory, pastoral leases are also excluded.
Other designated areas include the Point Pearce and Yalata communities in South Australia.
Response to the Determination
The Explanatory Statement to the Determination advises that the remote communities requirements are supported by the Commonwealth Chief Medical Officer and the Chief Executive Officer of the National Indigenous Australians Agency (NIAA). Consultation on the Determination was conducted by NIAA with the relevant states and territories and Land Councils. The travel restrictions are well supported as necessary to protect some of Australia’s most at-risk citizens, including by Australia’s peak Aboriginal health group, the National Aboriginal Community Controlled Health Organisation (NACCHO). Moreover, the Central Land Council had already acted to restrict movement in its region by cancelling all non-essential travel to remote communities and by cancelling all mineral exploration permits.
The Government has also announced grants to assist remote communities protect themselves against COVID-19 and will provide an additional $6.9 million through NACCHO to Aboriginal and Torres Strait Islander Community Controlled Health Services and sector support organisations ‘to coordinate Australia’s COVID-19 response efforts, including to ensure cultural safety across all GP respiratory clinics’.