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Coronavirus: What can Big Brother make me do?

This post answers some questions about how the Commonwealth Biosecurity Act 2015 works.

The word quarantine has Venetian policy as its source.  Given Italy’s role at the centre of Europe’s coronavirus outbreak, the irony is not lost.  A policy first enforced in 1377, ships from plague-stricken countries had to wait 40 days, or quarantina giorni, off the port of Venice to ensure no latent cases were on board.

In recent weeks, the prospect of quattordici giorni, or 14 days solation, has become very real.  However, missing from the commentary until the last week has been any discussion about how this can be enforced.

Making people do things is a tricky subject for governments.  We take for granted our freedom of movement.  If the government of the day limits our freedom, it may not be the government for very long.

On 21 January 2020, the ‘human coronavirus with pandemic potential’ was identified as a Listed Human Disease under the Biosecurity Act 2015 (Cth).  To be listed, the coronavirus had to meet the statutory test of being communicable and capable of causing significant harm to human health (s. 42(1)).  Interestingly, it took the Prime Minister at least a month to announce this to the public.  No doubt, he didn’t want to create a panic.  He also likely didn’t want to focus attention on what the government can make us do.

In the context of health legislation, the States do not attack civil liberties aggressively.  There are various Health Acts around the country.  However, they tend to focus on requiring medical personnel to report various things. As for biosecurity legislation, some States do have this. However, plants (bananas, fruits, weed management) or animals (livestock, poultry, and oysters) are more the focus. See, for example, the Biosecurity Act 2015 (NSW) and the Plant Biosecurity Act 2010 (Victoria).

There is no question that the Commonwealth Biosecurity Act provides scope for a dystopian future. It gives the government almost unfettered discretion to make us do things should the health need arise, with the prospect of use of force or jail for transgressors, depending on the circumstances.

What is the Commonwealth Biosecurity Act?

The Commonwealth Biosecurity Act is robust.  It squarely addresses the risk of infectious human disease.  A focus of the Act is on disease which can cause significant harm to human health.

First, the good news.  None of the measures in the Act can interfere with any urgent or life-threatening medical needs of a person.  Further, if a child or incapable person is subject to any measures, they can be accompanied by another person.

Otherwise, the human population can be subject to a range of directions should the need arise. Anti-vaxxers will not be thrilled by some of them.  Assuming a coronavirus vaccination hits the market, people might be required to declare whether or not they have been vaccinated before entering Australia.  People are liable to civil penalties if they fail to comply with these obligations.  Section 46(4) provides that even if the individual is unable to comply with the requirement, they will still contravene. There are also circumstances where people within Australia might be directed to be vaccinated (refer below).

Human biosecurity control orders

A human biosecurity control order can be issued in relation to an individual.  This may include vaccination, restricting the individual’s behaviour and ordering the individual to remain isolated.  This is plainly draconian.  The scheme is premised on the basis that the person consents.  If they don’t consent, they do not have to comply with the order unless a direction is given the ‘Director of Human Biosecurity’.  This is the Chief Medical Officer. Some of the measures allow for judicial review.  Others must be complied with immediately.

When can a human biosecurity order be imposed?

In the context of the current crisis, a human biosecurity control order may be imposed on an individual only if the individual has one or more signs of symptoms of coronavirus, or the person has been exposed to it or to a person who has it, or the person has failed to comply with an entry requirement (section 60(2)).

What can a human biosecurity order do?

Here are some things which a human biosecurity order can require people to do:

  • go home and stay there for a specified period;
  • wear specified clothing and equipment designed to prevent a disease from emerging, establishing itself or spreading;
  • be decontaminated;
  • go to a medical facility for testing;
  • at a medical facility, give body samples for diagnosis;
  • be vaccinated or have a specified form of treatment or medication.

Can force be used?

For most of these requirements, force cannot be used.  Force may be used though:

  • to prevent a person leaving Australia in contravention of a traveller movement measure; or
  • to detain a person who fails to comply with an isolation measure at a specified medical facility.

To prevent a person from boarding a plane or boat to exit Australia in contravention of an order, a Customs officer must not use more force, or subject the person to greater indignity, than is necessary and reasonable.

A person can only be detained for failing to comply with an isolation measure if he or she poses a significant risk of contagion.

When is it a criminal offence?

A person who escapes from detention risks imprisonment for five years, or a significant fine, or both.

A person who fails to comply with a human biosecurity control order also risks imprisonment for five years, or a significant fine, or both.

What if a person has died of coronavirus?

Biosecurity officers may give directions for managing specified human remains if the officer is satisfied that they are likely to be infected with coronavirus.  This must be done by a written direction to the person responsible for them.  That person must then comply with the direction or risk a civil penalty (i.e. a fine).

Can the Government order that whole districts be quarantined, as has happened in Italy?

Yes.  The Director of Human Biosecurity can determine that a specified area within a State or Territory is a human health response zone.  The Director must be satisfied that this needs to be done to prevent, or reduce the risk of, coronavirus emerging, establishing itself or spreading in Australian territory or part thereof.  A specified area can also be a building or part of a building.  A person who fails to comply with a human health response zone is liable to a civil penalty (a fine).

There is also power to create permanent or temporary biosecurity monitoring zones, for example, at points of entry into Australia.

Special powers to deal with human biosecurity emergencies.

The Governor-General may make a human biosecurity emergency declaration if the Health Minister is satisfied that the special powers are needed to deal with a human biosecurity emergency.  The special powers are for dealing with emergencies involving threats or harm to human health on a nationally significant scale.

In the case of coronavirus, the Health Minister must be satisfied that the disease is posing a severe and immediate threat, or is causing harm, to human health on a nationally significant scale.  ‘Severe and immediate threat’ suggests the risk of imminent harm that has not yet occurred.  ‘Causing harm’ suggests that existing harm is demonstrable.  None of these terms are defined in the Act. What must constitute harm is not specified. How does one assess the risk of illness versus death, and the relevant proportions? Must ‘harm’ mean harm to physical human health? Could the government decide that economic harm with its effect on mental health satisfies the test?

During an emergency period, the Health Minister may determine any requirement that he or she is satisfied is necessary to prevent or control the disease.  A person who fails to comply with such a requirement may commit an offence punishable by imprisonment for 5 years, or a substantial fine, or both.

This provision creates draconian powers. To test them, ask whether the annual flu is sufficient to pose a severe and immediate threat, or is causing harm to human health on a national scale. If not, why not? How then, does coronavirus potentially satisfy the test? What percentage rate for fatalities might influence this assessment?

Criminal offences for people who hinder compliance with the Act.

A person must not engage in conduct that hinders or prevents another person from performing functions or duties, or exercising powers, under the Biosecurity Act.  If it’s a fault-based offence, the person risks imprisonment for 2 years or 120 penalty units, or both.  Otherwise, there is a civil penalty provision in which a person risks a fine.

The privilege against self-incrimination has been abolished for the purposes of the Act.

Conclusion

It is one thing to have draconian powers in theory.  It is quite another to implement them. It is important not to create panic and pandemonium.  We do not want people turning on each other. A case in point concerns the Victorian Health Minister who reportedly pronounced herself “flabbergasted” that a doctor who is the victim of coronavirus had come to work. It seems he only had mild cold-like symptoms, after returning from Vail in the USA (not a coronavirus trouble spot). That a person picks up the virus, whether or not he or she is a health-worker, and may have passed it on, is for the most part, something that could have happened to any of us.

Should it transpire that the government has to make directions and orders as set out above, it will be completely unhelpful if the recipients are shamed, censured or emotionally ostracised.

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