Posted 01/12/2021 by Howard Maclean
On 26 November 2021 the World Health Organization (WHO) Technical Advisory Group on SARS-CoV-2 Virus Evolution (TAG-VE) advised the WHO that a SARS-Cov-2 variant, first detected on 9 November 2021 in South Africa, should be designated as a ‘Variant of Concern’ (VOC) named Omicron.
In response, on 27 November 2021, the Australian Government announced new border biosecurity measures to manage the emergence of Omicron in Australia. The Government announced five concrete actions to be taken immediately:
- Effective immediately, anyone who is not a citizen or permanent resident of Australia, or their immediate family including parents of citizens, and who have been in African countries where the Omicron variant has been detected and spread – within the past 14 days – will not be able to enter Australia. The countries are: South Africa, Namibia, Zimbabwe, Botswana, Lesotho, Eswatini, Seychelles, Malawi and Mozambique.
- Australian citizens and permanent residents, immediate family members including parents arriving from these countries will need to go into immediate supervised quarantine for 14 days subject to jurisdictional arrangements.
- Anyone who has already arrived in Australia and who has been in any of the nine countries within the past 14 days must immediately isolate themselves and get tested for COVID-19 and follow jurisdictional quarantine requirements which will include quarantine for 14 days from the time of departure from southern Africa.
- These restrictions also apply to people, for instance international students and skilled migrants, arriving from the safe travel zones we have established with New Zealand, Singapore, Japan and Republic of Korea, who have been in any of the nine countries within the past 14 days.
- The Government will suspend all flights from the nine southern African countries for a period of 14 days as a matter of precaution.
At the press conference announcing these measures, the Commonwealth Chief Medical Officer Paul Kelly further announced that the Government would require that arrivals outline a 14-day travel history with a particular focus on places of concern in southern Africa. This FlagPost examines the various legislative provisions that have been used to give effect to these actions.
Legislative Response
On 28 November 2021, the Health Minister, Greg Hunt, made the following legislative instruments:
The Travel Pause Determination No. 2 gives effect to the ban on non-citizens who are not permanent residents from entering Australia by air within 14 days of being in one of the nine African countries of concern, as mentioned in Action 1 (unless an exemption applies). The Entry Requirements Determination No. 2 creates a new requirement for people to disclose their travel history for the preceding 14 days in order to enter Australia.The quarantine of Australian citizens and permanent residents (and other persons exempt from the Travel Pause Determination No. 2) recently arrived from southern Africa (Actions 2 and 3) is being given effect under COVID-19 legislative arrangements of the states and territories.
Travel Pause Determination No. 2
The Biosecurity (Emergency Requirements—High Risk Country Travel Pause) Determination (No. 2) 2021 is a human biosecurity emergency requirement made under section 477 of the Biosecurity Act 2015 (Cth) (the Act). A human biosecurity emergency was declared under section 475 of the Act on 18 March 2020, and has now been extended six times, most recently by the Biosecurity (Human Biosecurity Emergency) (Human Coronavirus with Pandemic Potential) Variation (Extension No. 3) Instrument 2021. The human biosecurity emergency period is due to end on 17 December 2021 (paragraph 7(b)).
The Library has previously considered the operation of the human biosecurity emergency powers in a series of FlagPosts, and most recently in Appendix B of the Biosecurity Amendment (Enhanced Risk Management) Bill 2021 Bills Digest.
The Travel Pause Determination (No. 2) is a legislative instrument, but is not disallowable by Parliament (subsection 477(2) of the Act).
The text of the Determination is very similar to the Biosecurity (Human Biosecurity Emergency) (Human Coronavirus with Pandemic Potential) (Emergency Requirements—High Risk Country Travel Pause) Determination 2021 (Travel Pause Determination (No. 1)), as discussed in an earlier FlagPost, however, the current travel pause does not apply to Australian citizens, permanent residents and their families as the first travel pause Determination did.
Which passengers may not enter Australia?
Section 6 of the Travel Pause Determination No. 2 provides that passengers on relevant international flights may not enter Australian territory if they have been in an Omicron high risk country within the past 14 days.
‘Omicron high risk country’ is currently defined as Botswana, Eswatini, Lesotho, Malawi, Mozambique, Namibia, Seychelles, South Africa and Zimbabwe.
Exemptions
Section 7 of the Travel Pause Determination No. 2 provides for a number of exemptions including for Australian citizens and permanent residents and their immediate families, aircrew, freight workers, and diplomatic staff and their families.
The Determination does not apply to people who are not passengers arriving by air.
Unlike the Biosecurity (Human Biosecurity Emergency) (Human Coronavirus with Pandemic Potential) (Overseas Travel Ban Emergency Requirements) Determination 2020, no-one is authorised to issue individual discretionary exemptions on the basis of exceptional circumstances.
Contravening any valid biosecurity requirement, including section 6 of the Determination, is a criminal offence, punishable by a maximum of five years imprisonment and/or a $66,600 fine (that is, 300 penalty units).
Entry Requirements Determination (No. 2)
The Biosecurity (Entry Requirements—Human Coronavirus with Pandemic Potential) Determination (No. 2) 2021 gives effect to the Government’s announcement to create a new requirement for persons to disclose their recent travel history when entering Australia by international flight.
Entry Requirements under the Biosecurity Act
The Entry Requirements Determination No. 2 is made under section 44 of the Biosecurity Act, which provides that:
The Health Minister may determine one or more requirements for individuals who are entering Australian territory at a landing place or port …
The Determination is a legislative instrument but is not disallowable by Parliament (subsection 44(3) of the Act). The Entry Requirements Determination (No. 2) is the third entry requirement Determination made in relation to the COVID pandemic.
Passenger Statements
The Entry Requirements Determination (No. 2) creates a new requirement that persons entering Australian territory on an international flight must make a passenger statement (prior to boarding) of the individual’s travel history for the previous 14 days, personal and contact details of the person, and an acknowledgement of applicable state or territory quarantine requirements (subsections 5(1) and (2) of the Determination).
Passenger statements may be made either electronically, or on paper. The person must be able to produce the statement (if on paper) or evidence of having made the statement (if made electronically) to an authorised officer on request at the landing place of the international flight (subsections 5(3) and (4) of the Entry Requirements Determination (No. 2)).
This requirement does not apply to government-facilitated flights or medical evacuation flights, which are not ‘relevant international flights’ under the Determination (section 4).
Failure to comply with the entry requirement applicable to the person is punishable by a maximum civil fine of 30 penalty units (currently $6,600) (subsection 44(1) of the Act).