Are Sweeping Human Biosecurity Emergency Powers Justified?

When the threat COVID-19 posed could no longer be kept under wraps in Wuhan, the Chinese Government did not hesitate to impose a largely experimental lockdown on an unprecedented scale. While this initially sparked bewilderment throughout the Western world, its effectiveness cannot be denied, with Hubei province reporting no domestic transmissions of the disease for the first time a few days ago. 

State and Federal Governments in Australia are now considering the tools at their disposal to control the outbreak. At this stage, it seems unlikely that any lockdown style measures the government imposes will be as restrictive as those imposed in Wuhan – where food had to be picked up from the borders of some provinces, residential buildings were closed to all but their residents and door-to-door health checks were imposed.

However, it is important to be informed about the extent of our government’s powers amid the panic and uncertainty, especially given that this is the first time in Australia’s history that such emergency laws have been invoked.

Federal Powers – The Biosecurity Act 2015

The main source of law at the Federal level is the Biosecurity Act 2015.

Under the Act, COVID-19 is considered a human biosecurity threat, allowing the government to impose control orders on individuals. Such orders can restrict behaviour or movement of persons in order to prevent or control the emergence, establishment or spread of the virus in Australian territory or a part of an Australian territory.

While many people are already practising voluntary self-isolation, the Act allows the Government to impose control orders on individuals in certain circumstances, for example, to be isolated at home for a period of time (14 days in this case), to receive medical treatment, to restrict certain behaviour and to provide personal information including samples for diagnosis.

Perhaps, somewhat concerningly, some powers under the Act can be exercised even in the absence of any knowledge or reasonable suspicion that a person has COVID-19.

As noted by Law Council of Australia President, Pauline Wright, in a statement on 3 March 2020:

“Powers under the Biosecurity Act 2015 (Cth) are extraordinary and must be approached with the utmost caution and should only be used as a last resort. The exceptional powers under the Act do not have the types of safeguards and independent oversight protections afforded to our law enforcement and security agencies’ exercise of coercive powers.”

Failure to comply with a control order is an offence that can result in a fine of $63,000 or 5 years imprisonment.

With the Governor-General declaring the COVID-19 outbreak a ‘human biosecurity emergency,’ the government has been exercising its power to shut down premises – as we have seen around Australia over the past few days with increasing severity – and to restrict the movement of individuals and the gathering of groups of people.

State and Territory Laws

The powers of states and territories are very similar to those of the Federal government, including severe penalties for non-compliance which vary from state to state.

Regular police checks may become the norm. This week, Victoria Police set up a dedicated COVID-19 taskforce to enforce the current lockdown measures.

Don’t panic, but do pay attention 

All of this can seem quite scary. This is especially so given the breakneck pace with which the COVID-19 situation has been developing in Australia over the last 2 weeks. New control orders and restrictions are being issued almost daily.

However, a declaration of a state of emergency under the Federal and state and territory legislation must be reviewed regularly. Under the Act, control orders can be imposed for three months with the option of a three-month extension.

There are also restrictions on the imposition of control orders and the option for judicial review in most cases. Individuals can apply to the Administrative Appeals Tribunal for review under section 76 of the Act within seven days of a direction being made. Judicial review is also available under section 81 of the Act.

Where to from here

The extreme measures implemented in China are not the only way to control a pandemic of this nature. Research suggests that stringent “social distancing” is among one of the most effective mechanisms to combat the spread of a disease. Other countries, such as Taiwan and Singapore, have contained COVID-19 with an aggressive and early combination of screening, testing and social distancing. Australia would do well to follow with similarly stringent measures.

However, our actions to date – or at least those who decided to flood Bondi Beach over the weekend – have forced the government to continue to use its power to shut down bars, restaurants, beauty salons, auctions, open houses, and to impose restrictions on the number of attendees at weddings and funerals to 10 people.

Yes, the future is uncertain. The best we can do as a community is to pull together, exercise a heightened degree of social responsibility and recognise the critical role each of us can play in protecting each other and those most vulnerable to contracting COVID-19.

Hard though it might seem, we can do this simply by avoiding all unnecessary social contact with others.

The faster we appreciate our collective responsibility to slow the spread of this virus, the faster we can all get back to something that resembles our normal lives.