We are all well aware that more and more of us are being told to self-isolate due to the spread of novel coronavirus (COVID-19). Governments are readily imposing shutdown measures across Australia to curb the spread of the virus, with the closure of borders, the banning of gatherings, forced closure of pubs and clubs, entertainment venues, gyms, indoor places of worship, sporting venues, you name it.

What we have also been noticing is that some people have not been taking these directions as seriously as others.

In Italy for example, more than 40,000 have been charged for violating the lockdown since the national quarantine was imposed on 9 March 2020.

In Australia, we are seeing specific police taskforces assembled dedicated to enforcing the shutdown measures.  A multiagency taskforce was announced for Queensland with police commencing compliance checks in entertainment precincts.

So where do these powers come from?

Biosecurity Act 2015 (Cth)

On 18 March 2020, the Governor-General declared that a human biosecurity emergency exists.  This declaration was made under section 475 of the Biosecurity Act 2015 (Cth) and is the first time that the powers under the Biosecurity Act have been used.

The Biosecurity Act provides the Health Minister with very broad powers, including any requirement that he or she is satisfied is necessary to prevent or control the emergence, establishment or spread of the declaration listed human disease in Australia.[1]  These powers are subject to safeguards that the requirement must be “likely to be effective”, is “appropriate and adapted” to its purpose and is “no more restrictive or intrusive than is required in the circumstances”.[2]

This includes the power to impose general requirements on people entering or leaving specific places, to restrict or prevent the movement of people within places and to evacuate places.[3]

Further, specific officers can make a “human biosecurity control order”[4] to require individuals to do or not do certain things, including:

  • Requiring a person to provide their contact information and health details including body samples for diagnosis;
  • Restricting a person’s behavior including restrictions on movement;
  • Requiring a person to isolate from the community for specific periods of time;
  • Requiring a person to undergo other risk-minimisation interventions including wearing protective equipment;
  • Requiring a person to undergo decontamination and/or undertake treatment. [5]

There is no requirement for a person to actually be infected or for the officer to even reasonably believe or suspect that a person is or may be infected for a control order to be issued.[6]

If a person does not consent to a control order, the Biosecurity Act provides a power for the Director of Human Biosecurity (the chief medical officer) to compel them to comply.[7]

What happens if you don’t comply?

A person who fails to comply with any requirement or direction made pursuant to the powers under the Biosecurity Act may be charged with a criminal offence.

Offences for failing to comply carry maximum penalties of five years imprisonment or 300 penalty units (approximately $63,000), or both.[8]

The same penalties apply to a person who fails to comply with a control order.[9]

In some cases, a person may be detained by police, particularly in the instance that a person refuses to comply with a requirement to stay at a particular place to isolate themselves.[10]  Escaping from detention is a criminal offence and the same penalties above apply.[11]  However, the Attorney-General has stated that detention of individuals is intended as a “last resort”.

Public Health Act 2005 (Qld)

There are similar separate ‘emergency powers’ under State law allowing an officer responding to a declared public health emergency to direct a person to do, or refrain from doing, certain things.[12]

These powers are in line with the National law and include directing people to stay in their home, or another isolation area.  It also includes directions to an owner or operator of a business to close or limit visitor access for a specified period.

It is criminal offence for a person not to comply with the requirement or direction.  The maximum penalty is 100 penalty units (approximately $13,345).[13] Further, an officer may under certain circumstances take action to enforce the requirement or direction.[14]

There is no doubt that these measures at both the National and State level have the potential to significantly impact upon a person’s liberty, including the obvious restrictions on movement and self-isolation requirements.

The next blog in this series will discuss the human rights and civil liberties concerns stemming from these extensive powers under Commonwealth and State law.

[1] Biosecurity Act 2005 (Cth), ss 477, 478.

[2] Biosecurity Act 2005 (Cth), ss 477(4), 478(3).

[3] Biosecurity Act 2005 (Cth), s 477(3).

[4] Biosecurity Act 2005 (Cth), s 60.

[5] Biosecurity Act 2005 (Cth), ss 85-97.

[6] The officer does have to be satisfied as to the principles provided for in Biosecurity Act 2005 (Cth), s 34.

[7] Biosecurity Act 2005 (Cth), s 72.

[8] Biosecurity Act 2005 (Cth), s 479

[9] Biosecurity Act 2005 (Cth), s 107.

[10] Biosecurity Act 2005 (Cth), s 103.

[11] Biosecurity Act 2005 (Cth), s 106.

[12] Public Health Act 2005 (Qld), s 345.

[13] Public Health Act 2005 (Qld), s 346.

[14] Public Health Act 2005 (Qld), s 345(3).