The Offence of Contravening a Human Biosecurity Emergency Requirement or Direction

Since COVID-19 landed on our shores in early 2020, a range of orders and determinations have been issued by state, territory and federal governments which regulate Australian residents, ostensibly to limit the spread of the virus.

In New South Wales, these are known as public health orders and, at the time of writing, impose limitations on, among other things, public and private gatherings.

These public health orders are issued by the NSW health minister without the need for parliamentary scrutiny.

The maximum penalty for failing to comply with a public health order is two years’ imprisonment and/or a fine of $5,500.

Alternatively, police are empowered to issue ‘on-the-spot’ criminal infringement notices of $1,000 to individuals, or $5,000 to businesses.

The Biosecurity Act 2015 (Cth)

At a national level, the Biosecurity Act 2015 provides a mechanism for the federal health minister, currently Greg Hunt, to impose requirements and give directions during a ‘human biosecurity emergency period’.

What is a human biosecurity emergency?

Section 475(1) of the Biosecurity Act empowers the federal health minister to declare a human biosecurity emergency if satisfied that:

• A listed human disease is posing a severe and immediate threat, or is causing harm, to human health on a nationally significant scale, and
• The declaration is necessary to prevent or control:
• The entry of the disease into Australia, or
• The emergence, establishment or spread of the disease in Australia.

What is a listed human disease?

Section 42 of the Act provides that the  director of human biosecurity may  determine that a human disease is a listed human disease if the Director considers that the disease may be communicable and cause significant harm to human health.

Before making such a determination, the director must consult with the chief health officer for each state and territory.

COVID-19 is currently a listed human disease.

Who can declare a human biosecurity emergency?

Section 475(1) of the Act provides that the governor-general may declare the existence of a human biosecurity emergency if the health minister is satisfied of its existence.

What must a human biosecurity emergency declaration specify?

Section 475(3) requires that a human biosecurity emergency declaration specify:

• The listed human disease to which it relates,
• The nature of the emergency and conditions that gave rise to it, and
• The period during which it is in force.

How long does a human biosecurity emergency last?

Section 475(4) stipulates that a human biosecurity emergency declaration can last no longer than the health minister considers it necessary to prevent or control:

• The entry of the listed human disease into Australia, or
• The emergence, establishment or spread of the disease in Australia.

The period cannot, in any case, last for more than 3 months.

Can a human biosecurity emergency period be extended?

Yes. Section 476 of the Act empowers the governor-general to extend the biosecurity emergency period for a further 3 months if the health minister is satisfied that:

• The disease continues to pose a severe and immediate threat, or continues to cause harm, to human health on a nationally significant scale, and
• The extension is necessary to prevent or control:
• The entry of the disease into Australia, or
• The emergence, establishment or spread of the disease in Australia.

This can be done an unlimited number of times, provided the above assessment and determination is made before each proposed extension.

When can a human biosecurity emergency requirement be imposed?

Section 477(1) of the Act empowers the health minister to impose requirements during a biosecurity emergency period if satisfied that it is necessary to prevent or control:

• The entry of the declared listed human disease into Australia,
• The emergence, establishment or spread of the disease in Australia,
• The spread of the disease to another country.

The minister may also impose requirements in order to give effect to recommendations by the World Health Organisation.

What types of requirements can be imposed?

Section 477(3) of the Act empowers the health minister to impose requirements:

• That apply to persons, goods or conveyances when entering or leaving specified places,
• That restrict or prevent the movement of persons, goods or conveyances in or between specified places,
• For specified places to be evacuated, and
• For the purposes of giving effect to the above.

The above list is not exhaustive.

What must be considered before a requirement is imposed?

Section 477(4) requires the health minister to be satisfied of the following before imposing a requirement:

• That the requirement is likely to be effective in, or contribute to, achieving the purpose for which it is made,
• That it is appropriate and adapted to achieving its purpose,
• That it is no more restrictive or intrusive than required in the circumstances, and
• That the period of the requirement is no longer than necessary.

When can a human biosecurity emergency direction be given?

Section 478(1) of the Act empowers the health minister to give directions during a biosecurity emergency period if satisfied that it is necessary to prevent or control:

• The entry of the declared listed human disease into Australia,
• The emergence, establishment or spread of the disease in Australia,
• The spread of the disease to another country.

The minister may also make directions to give effect to recommendations by the World Health Organisation.

What types of directions can be given?

Section 478(2) of the Act empowers the health minister to make directions:

• To close or prevent access to premises,
• That are required to give effect to or enforce a requirement under section 177,
• In order to give effect to the above.

The above list is not exhaustive.

What must be considered before a direction is made?

Section 478(3) requires the health minister to be satisfied of the following before giving a direction:

• That the direction is likely to be effective in, or contribute to, achieving the purpose for which it is made,
• That it is appropriate and adapted to achieving its purpose,
• That it is no more restrictive or intrusive than required in the circumstances, and
• That the period of the direction is no longer than necessary.

Who exercises human biosecurity emergency powers?

Section 474 of the Act makes clear that the above powers can only be exercised by the health minister.

What happens if a person breaches a requirement or direction?

Breaching a biosecurity requirement or determination carries potential consequences under both the Biosecurity Act 2015 and the Criminal Code Act 1995.

The Biosecurity Act

Section 479 of the Biosecurity Act 2015 (Cth) makes if a criminal offence punishable by up to 5 years in prison and/or a fine of 300 penalty units (or $63,000, as a Commonwealth penalty unit is currently $210) to contravene a direction made under section 477 or 478 of the Act.

When it comes to providing information, such as entries on a customs declaration or the like, section 532 of the Act prescribes a civil penalty of up to 60 penalty units (currently $12,600) for giving information in compliance or purported compliance with the Act while knowing the information is false or misleading or by omitting any matter or thing without which the information is misleading.

Section 533 of the Act imposes the same 60 penalty units maximum penalty for producing a document to another person in compliance or purported compliance with the Act while knowing that the document is false or misleading.

The Criminal Code Act

The Criminal Code Act 1995 (Cth) prescribes criminal penalties for conduct similar to that covered by sections 532 and 533 of thew Biosecurity Act.

In that regard, section 137.1 of the Criminal Code Act 1995 prescribes a maximum penalty of 12 months in prison for providing false or misleading information, or omitting any matter or thing without which the information is misleading, where the information is given to a Commonwealth entity exercising powers or functions under a law of the Commonwealth.

Section 137.2 of the Criminal Code Act prescribes the same maximum penalty of 12 months in prison for produces a document in compliance with a Commonwealth law (which includes the Determination) knowing that the document is false or misleading.