What is a Biosecurity Emergency Declaration in Australia?

There have been glimmers of hope that life might be getting back to ‘normal’ post pandemic in Australia, but the Federal Government announced this week that the soon-to-expire biosecurity emergency period implemented in March 2020, will be extended a further three months to March 2021.

The Federal Government has asked the Governor General to sign off on the proposed extension, a decision it says has been backed by health advice from the Australian Health Protection Principal Committee (AHPPC) and Commonwealth Chief Medical Officer.

The government says the extension is necessary in order to respond to the continued threat of COVID-19, which is down to controllable levels in Australia, but continues to spread around the globe.

What is a biosecurity emergency declaration?

Section 475 of the Biosecurity Act 2015 (Cth) (‘the Act’) contains a mechanism whereby the Minister of Health, currently Greg Hunt, can seek approval from the Governor-General to exercise extraordinary powers – without having to debate the matter in parliament – in order to deal with emergency public health threats.

The section provides that:

(1)  The Governor-General may declare that a human biosecurity emergency exists if the Health Minister is satisfied that:

(a)  a listed human disease is posing a severe and immediate threat, or is causing harm, to human health on a nationally significant scale, and

(b)  the declaration is necessary to prevent or control:

(i)  the entry of the listed human disease into Australian territory or a part of Australian territory, or

(ii)  the emergence, establishment or spread of the listed human disease in Australian territory or a part of Australian territory.

To request such a declaration, the Minister of Health must be satisfied that it is:

• likely to be effective in, or contribute to, achieving the purpose for which it is to be given
• appropriate and adapted to achieve the purpose for which it is to be given
• no more restrictive or intrusive than is required in the circumstances
• if a requirement, that the manner in which the requirement is to be applied is no more restrictive or intrusive than required in the circumstances and
• if the direction/requirement is to apply during a period—that period is only as long as is necessary.
• A requirement is a non-disallowable legislative instrument and must be lodged for registration on the Federal Register of Legislation. Directions are not required to be published.
• These requirements and directions may be given ‘despite any provision of any other Australian law’.

Breadth of directions

Sections 477 and 478 the Act give the Minister extensive powers to issue directions and make regulations in order to combat health threats, including but not limited to directions regarding entry into and departure from geographical locations, as well as requirements that apply to:

• Persons, goods or conveyances when entering or leaving specified places,
• The movement of persons, goods or conveyances in or between specified places, and
• The evacuation of specified places.

Section 474 of the Act requires the Minister to exercise these powers personally, which means they cannot be delegated to another person or body.

The relevant declaration period is three months, which can be extended for consecutive periods of three months at a time is a situation persists (section 475).

Basis of the current COVID-19 declaration

On 18 March 2020, a biosecurity emergency declaration was made on the basis that:

Human coronavirus with pandemic potential is an infectious disease:

(a)  that has entered Australian territory; and

(b)  that is fatal in some cases; and

(c)   that there was no vaccine against, or antiviral treatment for, immediately before the commencement of this instrument; and

(d)  that is posing a severe and immediate threat to human health on a nationally significant scale.

The stated purpose of the declaration was to:

• prevent or control the entry to, emergence, establishment, or spread of COVID-19 in Australia,
• prevent or control the spread of COVID-19 to another country, and
• implement a WHO Recommendation under the International Health Regulations.

Two extensions have already occurred

The declaration was initially put in place for three months, but was subsequently twice extended for an additional three months.

Existing restrictions remain under the latest extension, including:

• Limitations on the movement of cruise vessels.
• Limitations on outbound international travel.
• Restrictions on the operation of retail stores at international airports.
• These restrictions are reviewed regularly and take into account the latest expert medical advice. They can be amended or removed at any time based on the expert medical advice.
• The Australian Government is working closely with state and territory agencies and the cruise industry, to develop a framework for the staged resumption of cruise ships in a manner that is proportionate to the public health risk.

There may be further extensions

This is the first time these powers been used in Australia, and they could be extended beyond March if there is sufficient reason for the Health Minister to ask for a further extension.

To complicate matters further, states and territories – not the Commonwealth – have primary responsibility for matters related to health care and emergency management in Australia.

While there is federal legislation that governs health, providing a framework and structure, health management is handled by individual states and territories who are empowered to decide upon and implement their own individual responses to the pandemic.

The vaccines

There are likely to be changes coming though, with Canada recently announcing that it too has approved the vaccine made by Pfizer and BioNTech. It has already been approved in both the United Kingdom and Bahrain US authorisation is expected within days.

It’s likely that Australia will follow suit shortly, and then the health rules and regulations will change again.