Bills Digest no. 53 2007–08
National Health Security Bill
2007
WARNING:
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
Bill.
CONTENTS
Passage history
Purpose
Background
Financial implications
Main provisions
Conclusion
Endnotes
Contact officer & copyright details
Passage history
New and re-emerging disease threats such as
Severe Acute Respiratory Syndrome (SARS) and the ongoing outbreak
of avian influenza across much of Asia, combined with the
development of multi-drug resistance and the spectre of
bioterrorism, have impelled countries around the world to examine
closely their capacity to prevent, detect and respond to serious
infectious diseases.
The threat of a possible human influenza
pandemic is significant and growing. The avian influenza virus is
highly pathogenic and has spread from poultry and wild bird
populations in Asia to the Middle East and Europe. At the
International Pledging Conference on Avian and Human Pandemic
Influenza held in January 2006, it was noted that there is a
prospect of the disease s further spread to the Americas, Africa
and elsewhere. [1] As
at August 2007, there were 322 confirmed human cases of the avian
influenza virus, and 195 deaths. [2]
The World Health Organisation (WHO) has
indicated that the sole remaining prerequisite for the virus to
start a pandemic is its efficient and sustainable spread among
humans. [3] Although
there have not been any confirmed cases of efficient human-to-human
transmission of the virus, it has been noted that the virus may
take years to eradicate from bird populations, and that genetic
changes in the virus strain might yet result in efficient
human-to-human transmission and a human influenza pandemic. Were
this to be the case, the virus would pose a severe risk to
Australia through human movement across borders, and one greater
than that posed through an outbreak of the virus in poultry in
Australia.
Australia also faces the possibility of
threats to its health and security caused by terrorist attacks
using biological agents. These agents include pathogens like
bacteria and viruses which cause disease, and toxins that are
derived from living organisms like microbes and plants, which can
cause serious damage to human health. The threat of biological
weapons lies primarily in their ability to be easily concealed and
dispersed, especially if they are infectious and released in
crowded urban environments. [4] While Australia has not itself been subject to a
biological attack, terrorist attacks and anthrax incidents in the
US in recent years have stimulated many countries, including
Australia, to strengthen their defences against bio-terrorism,
primarily through the implementation of treaties.
Australia s systems for disease surveillance,
detection and reporting have recently been reinforced, as has
planning for mass casualty and outbreak preparedness. The National
Health Security Bill 2007 represents an attempt to consolidate much
of this planning, through its provision of legislative
underpinnings for the exchange of health information between
jurisdictions and the regulation and monitoring of facilities and
entities that handle security-sensitive biological agents.
This Bill gives effect to Australia s treaty
commitments under the revised International Health Regulations
(IHRs). The IHRs are an international agreement for the control of
the worldwide spread of disease. Upon adoption by the Health
Assembly of the World Health Organisation, the IHRs are legally
binding upon all WHO Member States, unless these states
affirmatively opt out of them.
The IHRs were originally adopted in 1969 as a
means to control six serious infectious (quarantinable) diseases,
namely, cholera, plague, yellow fever, smallpox, relapsing fever
and typhus. They were subsequently updated in 1973 and 1981, with
the WHO reducing the number of notifiable diseases to three:
cholera, plague and yellow fever.
In the light of
significant increases in international travel and trade, and the
emergence of new international disease threats such as severe acute
respiratory syndrome (SARS) and avian influenza, as well as the
re-emergence of old ones in recent years, the IHRs were
substantially revised in 2005. The revisions broaden significantly
the scope of the regulations to include all public health
emergencies of international concern. The new IHRs require State
Parties to develop certain minimum core public health capacities to
detect, assess, and notify the WHO of health emergencies that are
of international concern. At the same time, the IHRs aim to avoid
unnecessary interference with international traffic and trade .
The International
Health Regulations (2005) were adopted at the 58th World Health
Assembly by consensus on 23 May 2005. The new IHRs came into force
on 15 June 2007.
While individual
states are able to state a reservation, the Regulations were
carefully drafted such that a majority of countries will not reject
them or will not have reservations. As at December 2004, Australia
and Papua New Guinea were the only two countries that had rejected
the IHRs. According to media reports, Australia was reluctant to
accept them on the grounds that the Regulations were not stringent
enough. [5] As a
country situated in the region most affected by SARS and avian
influenza, Australia was keen to see a stricter set of rules and
was an active participant in the development of the new IHRs (that
is, those that were adopted in 2005).
Security sensitive biological agents (SSBA)
can be defined as infectious agents, such as bacteria and viruses
that can spread rapidly within a population, and toxins derived
from animals, plants or microbial material . [6]
According to the EM (Explanatory Memorandum),
there is a potential for either the deliberate or unintentional use
or release of SSBA to cause serious harm to human health, the
environment and the Australian economy . [7] There is currently no nationally
consistent legislation that addresses the security risks associated
with all facilities and entities that handle SSBA, nor their
location.
In December 2002, COAG agreed to a national
review of the regulation, reporting and security around the
storage, sale and handling of hazardous materials. The review has
been conducted in four parts covering ammonium nitrate,
radiological, biological and chemical materials. [8] The COAG review forms part of
Australia s participation in international efforts to control
access to chemical, biological and radioactive materials.
On 13 April 2007, COAG agreed to the
recommendations from the Report on the Regulation and Control of
Biological Agents. This includes that the most effective and
efficient means of minimising security risks posed by
security-sensitive biological agents, is to establish a national
legislative regulatory scheme to regulate all aspects of the supply
chain for specified agents of this nature . [9]
The Report explains that recommendations were
developed following:
-
analysis of the effectiveness of Australia s
current controls on security-sensitive biological materials
-
consideration of Australian Security
Intelligence Organisation assessment of threats to Australian
laboratories holding high risk human pathogens, and
-
the results of other related major Australian
reviews.
[10]
The regulatory scheme agreed to by COAG is
founded on risk-management principles that is, it seeks to ensure
that security is maximised and that regulatory impacts are
minimised. This means that the scheme focuses on managing the risks
posed by specific security-sensitive biological agents, so that
potential administrative burdens relate only to dealings with
nominated agents, rather than to the facility in which they are
handled. [11]
This Bill implements the mandatory national
regulatory scheme for SSBA agreed to by COAG. COAG agreed on this
option because it was considered to have the lowest likelihood of
failure and to be the most effective and efficient means of
minimising the security risks posed by SSBA. In reaching this
decision, COAG considered four separate regulation options:
-
Option one was to maintain the status quo and
introduce no additional controls.
-
Under option two, the Australian Government
would have issued non-mandatory regulation standards, leaving
industry to manage its compliance with these standards.
-
Option three would also have involved the
Australian Government issuing non-mandatory standards, but their
management by industry would have been the responsibility of a
compliance committee.
-
Option four, the one agreed to, was for
legislated mandatory standards for all those bodies working with
identified security-sensitive biological agents. A National
Authority was to be established to administer the scheme through
the maintenance of a national register, accreditation of relevant
facilities and monitoring through regular reporting and auditing of
facilities.
-
Options two, three and four were all to be
accompanied by an Australian Government-delivered education and
awareness campaign.
In reaching its decision, COAG reasoned that
option one was insufficient to secure against terrorist groups
acquiring and using biological weapons. Options two and three were
also deemed insufficient in this respect. Because there was no
significant difference in costs to facilities complying with their
requirements under all of the options, option four was considered
to be the most appropriate arrangement. [12]
To date, there has been no significant public
commentary on the measures contained in the Bill. The legislative
timeframe has not invited this. [13] There has been some public discussion (most of it
overseas) on the IHRs.
A number of
concerns have been raised in relation to the new IHRs. Broadly,
these relate to such issues as how effective the regulations will
be and the implications for individual rights and national
sovereignty.
One commentator
has noted that, in the absence of the resources necessary to
develop required public health capacities, poor countries are
unlikely to be able to meet their surveillance and response
obligations under the treaty. [14] Without contributions from donor countries, such
as those that were recently pledged to meet the costs of containing
avian influenza, this argument suggests that the effectiveness and
validity of the regulations will be compromised.
Other commentators
suggest that the regulations are overly optimistic in their
assumption that infections can be stopped at borders through
regulation of travellers, aircraft and cargoes. Using the example
of the SARS outbreak, these commentators indicate that entry
screening can be of little value in the case of infections that
have incubation periods longer than the duration of an air flight.
[15] Nor is it
clear that entry screening can address the risk posed by animals or
plants as vectors of bacterial or viral infections. This issue does
not appear to have been addressed in the Bill.
Commentators have raised a range of other
issues related to the efficacy of the regulations, including:
-
arguments for disease lists rather than simply
an algorithm for determining events that might constitute a public
health emergency of international concern
-
the failure of the regulations to deal
specifically with the investigation of bioterrorism, and
-
questions about precisely how the regulations
interact with pre-existing treaties.
[16]
Some concerns have been raised about the
internal surveillance and response mechanisms that have to be
developed by countries to enable them to inform the global
community of any potential international threats. In particular,
the surveillance requirements have implications for individuals
privacy. Under the regulations, the government of the Member State
is obliged to collect sensitive health information from patients,
travellers and other vulnerable populations .
The regulations require states to keep such
data confidential and processed anonymously as required by national
law . However, as Gostin notes, while the US and the European Union
have data protection statutes, they make exceptions for
surveillance. As a result, he recommends that, where countries do
not already have public health information privacy laws, they
should enact these laws to prohibit wrongful disclosures of
individuals health information. [17] In 2006 the government amended the Privacy
Act 1988 to enable the collection, use and disclosure of
personal information in an emergency or disaster, whether in
Australia or overseas. [18] This Bill similarly affects the use of personal
information in the context of notifiable diseases.
The EM indicates that the Bill does not
introduce any new measures for the sharing of personal health
information between the Commonwealth, states and territories.
Rather it provides a legislative basis for existing
cooperative arrangements between Australian jurisdictions
for the exchange of health information (our emphasis). Nor does the
Bill introduce any new measures with respect to the placing of a
person under public health observation while they are in an
Australian port or aircraft. This is to be carried out using the
existing processes provided for under the Quarantine
Act 1908. The only change is that where the responsible
Commonwealth, state or territory body places a traveller under
public health observation, they will now be obliged to notify the
National Focal Point and provide it with relevant information about
the traveller.
The EM specifies that the Bill aims to
authorise rather than mandate the exchange of information where it
comes to Commonwealth, state or territory bodies. This wording is
somewhat ambiguous and reflects the lack of clarity in the Bill
itself. It is not clear, for example, what would be the
implications for a relevant body if it were to fail to exchange
pertinent information that is, if the existing cooperative
arrangements were to break down. It is also unclear in the Bill
whether or not the authorise rather than compel arrangements are to
extend to individuals.
Implicit in the Bill is the assumption that
individuals under public health observation will disclose personal
information where requested. No mention is made of any requirement
for the relevant Commonwealth, state or territory body to seek the
individual s consent to gain such information. Similarly, there is
no specific explanation of whether or not the individual s consent
is required to enable the sharing of this information. It may be
the case that the requirement for individual consent is overridden
by the Quarantine Act 1908. It should be noted that
consent is a defence in relation to an alleged offence of
unauthorised disclosure under clause 25 of the
Bill.
Alternatively, the arrangements with regard to
individual consent may be specified as part of the operational
arrangements set out in the National Health Security Agreement
between the Commonwealth and state and relevant territory
governments and in administrative protocols developed by the
Department of Health and Ageing and relevant Commonwealth agencies
. [19] Regardless
of which of these may be the case, it would be useful if details
concerning the obtaining of individual consent were made explicit
in the Bill. [20]
The cooperation of states and territories
appears to have been already secured in relation to the
surveillance and information sharing requirements of the Bill.
Nevertheless, if an effective coordinated response to the threat of
infection is to be ensured, this may require increased public
awareness of the public health surveillance elements of the Bill.
This may entail a public education and awareness campaign, similar
to the Australian Government-delivered education and awareness
campaign for stakeholders proposed in relation to the regulation of
security-sensitive biological agents aspects under the Bill.
During consideration of the draft regulations,
some countries raised concerns about loss of national sovereignty
and control implicit in the requirement to immediately report
infection to the world community. [21] However, as one commentary on the
regulations in the British Medical Journal (BMJ) has
argued:
Some national sovereignty will need to be ceded
in return for collective protection from infection. The status quo
is not compatible with any adequate response to the threats that
all countries face from emerging and re-emerging infections.
[22]
In other words, the BMJ commentary regards the
regulations as presenting an acceptable compromise between national
sovereignty and the risks of infection. [23]
While the regulatory scheme proposed in the
Bill is likely to improve on existing arrangements, it is unclear
how well it could cope with bio-security risks that may fall
outside known facilities and entities that handle SSBA. For
example, individuals may unwittingly import, for research purposes,
materials that pose a bio-security risk. This problem could be
addressed, to some degree, through an education and awareness
campaign.
The 2004-05 federal budget provided $1.6
million over three years to support the development of this Bill.
Further, $1.8 million over four years was provided to develop a
national register of laboratories that use or store SSBA and other
high-risk human pathogens and toxins.
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Part 2 of the Bill will set
up a national system of public health surveillance (clause
6). The state and territory legislation that is currently
in place for control of infectious diseases comprises principally
these Acts: Public Health Act 1997 (ACT), Public
Health Act 1991 (NSW), Notifiable Diseases Act 1981
(NT), Health Act 1937 (QLD), Public and Environmental
Health Act 1987 (SA), Public Health Act 1997 (TAS),
Health Act 1958 (VIC) and Health Act 1911 (WA).
This legislation will remain in place, but presumably will be
amended in the light of a yet-to-be-made interstate agreement. The
lack of an extant agreement will make it difficult for Parliament
to consider this legislative innovation.
Clause 7 authorises the
government to enter into a National Health Security Agreement with
the states and territories. It is unclear what role a National
Health Security Agreement will play: it could be an agreement that
the states and territories will simply mirror the Commonwealth
legislation, or it could become the framework for a cooperative
legislative scheme that will reduce the current duplication of
legislation at the state level. There are also questions about the
form the agreement would take: would it require the participation
of all states and territories? Could a state or territory be left
out if agreement cannot be reached?
Clauses 9 and 10 appoint the
Secretary of the Department of Health and Ageing (or his or her
delegate) to be the National Focal Point (NFP) charged with
liaising between the World Health Organisation and Australian
bodies to implement the International Health Regulations.
Clause 11 permits the
Minister to establish a National Notifiable Disease List. Again, it
is unclear whether this will replace the existing state and
territory lists, or will operate alongside those lists, although
the Explanatory Memorandum does state that:
It is proposed that the National Health Security
Agreement will set out the operational arrangements for determining
or varying the NNDL, including consultation with the States and
Territories. It is envisaged that the Australian Health Protection
Committee will be the primary vehicle for consultation.
[24]
Clause 12 permits the
Minister or the Chief Medical Officer to vary the list without
consultation, and the listing has effect for up to six months. The
Minister is given the power to make such a temporary listing
independent of the Chief Medical Officer. This appears to be a
departure from the standard arrangements under which the Chief
Medical Officer would advise the Minister in such circumstances.
Such temporary listings may only be done once for any particular
disease. They may be extended beyond six months after consultation
with each state and territory health Minister and with the Chief
Medical Officer. All the listings under these clauses will be
disallowable instruments.
Clause 13 enables the
Minister to share any relevant information with state or territory
bodies when a significant public-health event occurs in Australia,
or when more than one Australian casualty occurs overseas and a
government agency is involved in repatriation.
Clause 14 enables the sharing
of information received from WHO, or provision of information to
WHO or other countries bound by the IHRs.
Where an incoming traveller is reported to be
under public-health observation, the Secretary of the Department of
Health (or his or her delegate) must inform relevant authorities,
including the NFP, who must make contact with the traveller
(clause 16). [25] If an in-transit traveller is placed under
public-health observation while in Australia, then personal
identifying information about that person must be provided to the
Secretary, who must pass the information on to the traveller s
destination country (if it is a signatory to the IHRs), and may
pass the information on to a non-signatory destination. The
information may also be passed on to the port or airport that the
traveller last passed through (clause 17).
Division 8 of Part 2 (clauses 18 to
26) authorises the use of personal information obtained
for the purposes of:
-
preventing notifiable diseases
-
implementing the IHRs,
-
identifying and repatriating Australian
casualties overseas, or
-
bringing non-citizen overseas casualties to
Australia for treatment.
There are also provisions to protect the
confidentiality of this personal information.
Protected
information is defined as personal information
obtained by the Secretary or the Minister under this Part, or
disclosed under this Part (clause 18). Under
clause 19 this information may be:
-
used or disclosed by public servants in the
course of their duties
-
disclosed by the Minister to WHO or
IHR-signatory countries, or to countries that may be affected by a
public-health risk
-
used by persons authorised by the Minister for
public-health reasons or to deal with overseas mass
casualties.
Clause 19 overrides any other
legislation which would penalise the disclosures dealt with
(sub-clause (7))and defines the various relevant
disclosures as Information Privacy Principle 11 in the Privacy
Act.
It is an offence to use or disclose protected
information (clause 21; maximum penalty, two years
imprisonment), but defences are provided (in clauses 22 to
25) for use:
-
in good faith
-
by prescribed Government agencies and
employees, public health and intelligence agencies
-
under the provisions of another law
-
where a government body could receive and use
the information apart from under the provisions of the Bill
-
for the person to whom the information relates,
or by consent of that person.
Part 3 of the Bill
establishes a new national regulatory scheme to control biological
agents that could be used as weapons. This is due to commence by
Proclamation (but not later than 18 months after Royal Assent). The
scheme is to be phased-in over an extended period following the
establishment of an advisory group and consultation with
stakeholders. Matters to be decided through this process relate to
the development of standards, procedures and administrative
arrangements.
Division 2 (clauses
31 to 34) authorises the Minister to establish and vary a
List of Security-sensitive Biological Agents (SSBA). The Minister s
determinations are not to be legislative instruments (unlike the
determinations in respect of notifiable diseases in Part 2), and
there is no requirement to either gazette the Minister s
determinations or to register them on the Federal Register of
Legislative Instruments. The Explanatory Memorandum does not
explain why different standards should apply to instruments under
Part 2 and Part 3. The apparently different standards would tend to
diminish the public access to the law promoted under the
Legislative Instruments Act 2003, despite the requirements
in the Bill for the Minister to act on expert advice, to consult
the states and territories, and to publish an up-to-date list on
the website of the Department of Health and Ageing (clauses
33 and 34). Parliament may wish to consider whether these
determinations should be legislative instruments, whether
disallowable or not or whether they should at least comply with the
requirement for public dissemination of legislative
instruments.
Division 3 (clause
35) authorises the Minister to set standards for the
storage and transport of SSBA, and for the security status of
persons involved. These standards must be developed in consultation
with experts, and with the states and territories, and are
disallowable. It is an offence to fail to comply with the standards
(clauses 57 and 58).
Division 4 (clauses
36 to 38) authorises the establishment of a National
Register of SSBA, which will include the names of facilities where
SSBA are held and details of the SSBA held there.
Division 5 (clauses
39 to 60) sets out requirements for entities that handle
SSBA. These entities will have one month after commencement to
report their holdings of SSBA (clause 42), and
thereafter entities will have two business days in which to report
new holdings. Failure to report will incur a fine of up to
$55 000, or $275 000 for bodies corporate (clause
43). The Secretary is obliged to register an entity if it
supplies all the information requested, states that it is complying
with the SSBA Standards, and the Secretary is satisfied that it is
using the SSBA for a legitimate purpose (clause
44). The Secretary may order an entity to dispose of SSBA
(clauses 45, 50, 53 and 57). The Secretary may
direct individuals not to handle an SSBA:
-
at any time, or
-
without further training, or
-
without obtaining further qualification or
certification, or
-
until the individual has complied with the
requirements of regulations (clause 59).
These decisions to order disposal of SSBA or
to prohibit an individual from handling SSBA are subject to
internal departmental review and are appealable to the
Administrative Appeals Tribunal (clauses 80 to
83). The Secretary may arrange for disposal of SSBA, and
may charge the cost to an entity that has been directed to dispose
of them but has failed to do so (clause 61).
Division 7 (clauses
63 to 79) sets up an inspection regime for SSBA.
Inspectors may enter any premises to verify compliance with Part 3
or the SSBA Standards, as long as they have a monitoring warrant or
have permission from the occupier (clause 65).
Occupiers must be informed that permission may be refused
(clause 75). If electronic equipment is damaged
during an inspection, compensation may be agreed, or damages may be
sought through the courts (clause 68). If
inspectors have reasonable grounds for suspecting non-compliance
with the Bill or the Crimes (Biological Weapons) Act 1976,
they may search for and take evidence (clause 70).
If inspectors believe that there is imminent risk of death or
serious injury, or a need to protect the environment, they may
enter and search for SSBA, once they have notified the local
emergency authorities (clause 73). Occupiers of
premises may be present during all searches under the Bill
(clause 78). The right not to incriminate oneself
is preserved by clause 79.
Division 9 (clauses
84 to 93) deals with the confidentiality of information
obtained under this Part. This information may be shared with
prescribed intelligence agencies, law enforcement agencies, or
emergency-response authorities so that security risks may be
assessed and handled (clause 85). It is an offence
to use or disclose protected information contrary to the provisions
of Division 9 (clause 90; maximum penalty, two
years imprisonment).
Conclusion
This Bill introduces a new principal Act, the
National Health Security Act. The introduction of the new
Act was foreshadowed in the 2004-05 federal budget. The Bill gives
effect to Australia s treaty commitments under the International
Health Regulations and implements recommendations of the COAG
Hazardous Biological Materials Review.
The two central elements of the Bill are:
In relation to the first of these elements,
rather than new arrangements between Australian
jurisdictions for the exchange of health information, the Bill
provides a legislative basis for existing
cooperative arrangements between jurisdictions. This gives
effect to Australia s treaty obligations under the IHRs. A new
measure introduced by the Bill is that where the responsible
Commonwealth, state or territory body places a traveller under
public health observation, they will now be obliged to notify the
National Focal Point and provide it with relevant information about
the traveller. This adds to the existing processes provided for
under the Quarantine Act 1908. The second of the elements
implements the mandatory national regulatory scheme for SSBA agreed
to by COAG.
Neither of the elements of the Bill has
attracted much public commentary. There has been some debate
internationally about whether the IHRs represent an effective
framework for infection control and also about their potential
impact on individual privacy and national sovereignty. The issue of
individual privacy may arise at some point in the future in the
event that the Government sought to exercise the powers contained
in this Bill. However, the Government is likely to argue that
individual rights need to be balanced against the rights of the
community to be protected from infectious disease.
Questions can be raised, however, about
whether the Government has adequately addressed in this Bill the
issue of whether individual consent is required prior to the
distribution of personal information. Finally, while the regulatory
scheme proposed in the Bill is likely to improve on existing
arrangements for SSBA, it is unclear how well it could cope with
bio-security risks that may fall outside known facilities and
entities that handle SSBA.
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Endnotes
[1]. Beijing
Declaration, International Pledging Conference on Avian
and Human Pandemic Influenza, 17-18 January 2006.
[2]. Australian
National Audit Office, Australia s Preparedness for a Human
Influenza Pandemic, Report No. 6, 2007-08.
[5]. See. N. Bita,
Health checks ahead at airports , The Australian, 6
December 2004.
[6]. COAG, Report
on the Regulation and Control of Biological Agents, November
2006, p. 6.
[7]. Explanatory
Memorandum, p. 21.
[9]. COAG,
Recommendations of the report on the regulation and control of
biological agents, April 2007, p. 1.
[13]. The Bill was
introduced in the House of Representatives on 13 September 2007 and
scheduled for debate on 19 September 2007.
[14]. L. Gostin,
Public health strategies for pandemic influenza , Journal of
the American Medical Association, 295:14, 12 April 2006, p.
1700.
[15]. J. Jones, P.
Aavitsland and J. Giesecke, Proposed new International Health
Regulations , British Medical Journal, 330, p. 322. One
commentator notes that while air transport has made quarantine more
difficult than it was in the past (with much slower ship
transport), quarantine will still be the first line of defence in
the event of an influenza (or other) pandemic. D. Eszenyi, The role
of law in keeping flue pandemic at bay , Adelaide
Advertiser, 28 August 2006.
[16]. ibid., p.
322. See also Nature, 435, 2 June 2005, p. 550.
[17]. L. Gostin,
op. cit.
[18]. Privacy
Legislation Amendment (Emergencies and Disasters) Act
2006.
[19]. Explanatory
Memorandum, p.12.
[20]. The
International Health Regulations (2005) give a reasonable amount of
guidance on how personal data are to be treated (under Article 45).
They also provide some guidance to Member States with regard to
their responsibilities in gaining individual consent for the
release of personal information. The regulations specify (at
Article 31) that the competent authority may request travellers to
complete contact information forms and questionnaires on the health
of travellers (subject to certain requirements). They also indicate
that where medical examinations are to be carried out in the
interests of public health, these can not be carried out without
travellers prior express informed consent or that of their parents
or guardians and in accordance with the law and international
obligations of the State Party . If travellers do not consent to
such a measure or refuse to provide the information or documents
they may, under Article 31 (2) be denied entry.
[21]. J. Jones et
al, op. cit.
[24]. Explanatory
Memorandum, p. 9.
[25]. Once a
traveller has officially entered Australia, of course, he or she is
subject to the existing public-health regime under state and
territory legislation. The Bill fills a small gap in existing
legislation, and observes the Commonwealth s traditionally limited
constitutional powers in this area.
Luke Buckmaster and Matthew Thomas
Social Policy Section
Patrick O’Neill
Law and Bills Digest Section
19 September 2007
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