COVID-19 May Trigger Use of Liberty-Restricting Laws

At 11 am on 12 March, there were 126 confirmed coronavirus cases in Australia, and three people had died as a result of the disease. While attorney general Christian Porter had warned the week prior that in response to the virus, certain biosecurity powers may be invoked for the first time.

One of these is the power for an individual who may have a “listed human disease” to be placed on a “human biosecurity control order”, under the provisions of the Biosecurity Act 2015 (Cth), as the Director of Biosecurity determined in January that COVID-19 is a “listed human disease”.

There are a range of requirements that can be imposed upon the subject of a human biosecurity control order. These include having to stay at a place of residence for a period of time, that they undergo decontamination or being restricted from leaving Australian territory for up to 28 days.

If an individual fails to comply with an isolation measure a federal, state or territory police officer may take them into custody to ensure they do isolate. While failure to comply with a biosecurity control order can see a person imprisoned for up to five years and/or receive a fine of $63,000.

State-level controls

As the federal attorney general was pulling some unknown powers out of his hat, SA premier Steven Marshall announced that his government will be enacting new laws to expand on detain and quarantine powers already in place in that state, so police can more easily be called in to assist.

Sydney University Associate Professor of Law Tyrone Kirchengast told Sydney Criminal Lawyers that there are similar measures contained in this state’s Public Health Act 2010 (NSW) (the Act), within which the coronavirus has already been listed as a category 4 condition.

Section 62 of the Act stipulates that an individual at risk of having contracted a category 4 condition can be placed on a public health order that can require them to refrain from certain activities, undergo specified treatment, or be detained in a certain place for the duration of an order.

However, the punishment that pertains to not complying with an order imposed by the NSW chief health officer, isn’t as harsh as at the federal level. Section 70 of the Act sets out that not following an order can see an individual sent away for up to 6 months and/or fined $11,000.

The crime of spreading disease

Professor Kirchengast pointed out that under the Crimes Act 1900 (NSW) the definition of grievous bodily harm includes any “grievous bodily disease” in cases where a person with a serious disease causes another person to contract it. And this provision is usually raised in reference to HIV.

Section 33 of the Crimes Act stipulates that an individual who causes another to contract a grievous bodily disease with intent can be sent away for up to 25 years. And for recklessly causing such a disease to spread can be punished with 10 years imprisonment, under section 35.

But, on whether this law could come into play in relation to COVID-19, Professor Kirchengast said there’s potential, but its slim.

“With HIV, all the cases surround sexual conduct. So, causation is established by there having been a sexual relationship,” he explained. “The problem with the coronavirus – like any cold and flu – is you can catch it sitting on a bus, so causation is much harder to prove.”