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Understanding the legal framework behind the government’s public health response to COVID-19

By Aaron KloczkoSophie Vo

• 16 April 2020 • 5 min read
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On 30 January 2020, the World Health Organisation (WHO) declared a Public Health Emergency of International Concern regarding the outbreak of COVID-19, and on 11 March 2020, the outbreak was declared a pandemic. Within a week of being declared a pandemic, 7 out of 8 Australian states and territories had declared an emergency and the Governor-General declared a human biosecurity emergency. These declarations reflect not only the severity of COVID-19 to human health, but also the far-reaching direct and indirect implications it has had and will continue to have on people and organisations throughout the world.

The information in this blog post is current as at 9am on Tuesday 31 March 2020.

In addition to making difficult operational decisions during this time of unprecedented uncertainty, we have seen organisations grapple with understanding the scope of the government’s powers in responding to the COVID-19 pandemic and requirements that are changing almost daily across different states and territories.

There are three key mechanisms by which governments have implemented new laws and requirements as a response to the COVID-19 pandemic:

  1. Passing bills through parliament
  2. Making determinations under the Biosecurity Act 2015 (Cth)
  3. Making directions under each state and territory's public health and emergency response laws.

While most of us are familiar with the first method, the second and third methods are significant ways for new public health measures to be introduced quickly. These measures are the focus for this post.

The declaration of a human biosecurity emergency

On 18 March 2020, in response to the spread of the SARS-CoV-2 novel coronavirus in Australia, the Governor General declared for the first time that a human biosecurity emergency exists. By making this declaration, the Health Minister’s broad emergency powers under sections 477 and 478 of the Biosecurity Act 2015 (Cth) were enlivened. The Health Minister may therefore determine any requirement or give any direction deemed to be necessary to:

  • prevent or control the entry, emergence, establishment, or spread of the coronavirus in Australia
  • prevent or control the spread of the coronavirus to another country
  • give effect to a recommendation from the WHO to the Health Minister in relation to coronavirus (under the International Health Regulations).

These emergency powers may override any Commonwealth, state or territory law (although directions cannot be given to state and territory officials without agreement). Since the declaration (and as of the date of writing), 5 determinations under these emergency powers have been made. These determinations set out requirements relating to persons entering designated remote communities; an overseas travel ban; restrictions on the operators of cruise ships from entering Australian territories; retail outlets at international airports; and price gouging of essential goods.

There are several other general powers available under the Biosecurity Act 2015 (whether or not a human biosecurity emergency has been declared) to deal with COVID-19, such as:

  • specifying requirements for entry to or exit from Australia
  • establishing preventative measures in relation to behaviours or practices
  • information-gathering
  • imposing human biosecurity control orders on an individual
  • declaring human health response zones.

To date, under these general powers, the Director of Human Biosecurity has determined 4 human health response zones (only one is presently still in force, being the determination concerning the use of the Swissotel Sydney for quarantine of inbound travellers) and the Health Minister has made one determination on exit requirements (concerning screening for travellers to neighbouring Pacific Island countries and Timor-Leste).

Public health risks and states of emergency

States and territories have their own public health and emergency response laws which underpin the powers available to implement public health and biosecurity measures within their respective jurisdictions.

Although there is a national human biosecurity emergency, a state of emergency has not yet been declared in NSW under the State Emergency and Rescue Management Act 1989 (NSW). In comparison, all other states and territories have made an emergency declaration. In NSW, the general powers under the Public Health Act 2010 (NSW) are expansive, enabling the Minister for Health and Medical Research to 'take such action and give such direction' as considered necessary to deal with a public health risk and its possible consequences. In contrast, the emergency declaration in some of the other states and territories triggers particular powers to make the significant directions to restrict movement and public gathering. For example, the Public Health Act 1997 in the ACT does not provide general powers for managing public health risks, but requires a public health emergency declaration for the Chief Health Officer to 'take any action or give any direction considered necessary or desirable to alleviate the emergency'.

The directions across the states and territories cover a range of matters, including gatherings and movements; self-isolation and quarantine; information gathering; non-essential venue closures; and residential aged care facilities (see our post on the order concerning residential aged care facilities here). We are working hard to maintain an up-to-date directory of the current public health and biosecurity directions made in response to evolving policy decisions, as well as the evolving epidemiology of the COVID-19 disease, which are being made, replaced and varied on a day-by-day, hour-by hour basis.

How the Federal and State/Territory Governments work together

The National Partnership on COVID-19 Response and the Australian Health Sector Emergency Response Plan for Novel Coronavirus (COVID-19) (activated on 27 February 2020) reaffirm that all jurisdictions have public health responsibilities, but the primary responsibility for managing the impact of COVID-19 lies with the state and territory governments.

On 13 March 2020, the Council of Australian Government formed the National Cabinet, made up of the nation’s first ministers (the Prime Minister, Premiers and territory leaders) and advised by the Australian Health Protection Principal Committee, to deliver a whole-of-government response to the COVID-19 outbreak. Following the National Cabinet meetings, the states and territories implement public health and biosecurity measures, on a substantially consistent basis, in their own jurisdictions under the relevant public health and emergency response laws. Individual states reserve the right to implement more intense measures, and this is widely expected to occur through different stages of the outbreak.

Maddocks has produced guides to a range of legal issues raised by the coronavirus (COVID-19). You can access these guides here.

By Aaron KloczkoSophie Vo

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