EXPLANATORY STATEMENT
Biosecurity Act 2015
Biosecurity (Human Biosecurity Emergency) (Human Coronavirus with Pandemic Potential) Variation (Extension No. 2) Instrument 2020
The Biosecurity (Human Biosecurity Emergency) (Human Coronavirus with Pandemic Potential) Declaration 2020 (the Declaration) was made pursuant to section 475 of the Biosecurity Act 2015 (the Act), and declares that a human biosecurity emergency exists regarding the listed human disease ‘human coronavirus with pandemic potential’ (COVID-19). The human biosecurity emergency period is in force for 3 months. On 14 May 2020, the Governor-General extended the human biosecurity emergency period for a further 3 months. The human biosecurity emergency period ceases on 17 September 2020, unless extended by the Governor-General.
Section 476 of the Act provides that the Governor-General may vary a human biosecurity emergency declaration to extend the human biosecurity emergency period for a period of up to 3 months if the Minister for Health is satisfied that the listed human disease is continuing to pose a severe and immediate threat, or is continuing to cause harm, to human health on a nationally significant scale, and the extension is necessary to prevent or control the entry, emergence, establishment or spread of the listed human disease in Australian territory or a part of Australian territory. The Governor-General may extend a human biosecurity emergency period more than once.
COVID-19 is a ‘declaration listed human disease’ for the purposes of the Act. The Minister for Health is satisfied, as required by subsection 476(1) of the Act, that COVID-19 is continuing to pose a severe and immediate threat to human health on a nationally significant scale, and the extension of the human biosecurity emergency period is necessary to prevent or control the entry, emergence, establishment or spread of COVID-19 in Australian territory.
Purpose
The purpose of the Biosecurity (Human Biosecurity Emergency) (Human Coronavirus with Pandemic Potential) Variation (Extension No.2) Instrument 2020 (the Instrument) is to vary the Declaration to extend the human biosecurity emergency period for a further 3 months until 17 December 2020, unless further extended by the Governor-General.
The Act provides that the Director of Human Biosecurity is the Commonwealth Chief Medical Officer in the Commonwealth Department of Health (s 544(1)). The Director of Human Biosecurity has advised the Health Minister, and the Health Minister is satisfied, that:
- COVID-19 is continuing to pose a severe and immediate threat to human health on a nationally significant scale; and
- the extension of the human biosecurity emergency period is necessary to prevent or control the:
- entry of COVID-19 into Australian territory; or
- emergence, establishment or spread of COVID-19 in Australian territory.
On advice from the Director of Human Biosecurity (who is the Commonwealth Chief Medical Officer), the Health Minister is satisfied that the human biosecurity period should be extended for a further 3 months, as:
• COVID-19 is continuing to pose a severe and immediate threat to human health on a
nationally significant scale; and
• the extension of the human biosecurity emergency period is necessary to prevent or
control the:
- entry of COVID-19 into Australian territory; or
- the emergence, establishment or spread of COVID-19 in Australian territory.
During a human biosecurity emergency period, the Minister for Health may, in accordance with sections 477 and 478 of the Act, determine emergency requirements, or give directions, that the Minister is satisfied are necessary to prevent or control the entry, emergence, establishment or spread of the listed human disease in Australian territory. The requirements or directions may also be made to prevent or control the spread of the listed human disease to another country, or to give effect to a recommendation to the Minister for Health by the World Health Organization (WHO) under Part III of the International Health Regulations. A person who fails to comply with a requirement or direction may commit a criminal offence (imprisonment for a maximum of 5 years, or 300 penalty units, or both).
During the human biosecurity emergency period for COVID-19, the Minister for Health has made the following determinations under section 477 of the Act which are currently in force:
the Biosecurity (Human Biosecurity Emergency) (Human Coronavirus with Pandemic Potential) (Essential Goods) Determination 2020
the Biosecurity (Human Biosecurity Emergency) (Human Coronavirus with Pandemic Potential) (Emergency Requirements—Retail Outlets at International Airports) Determination 2020
the Biosecurity (Human Biosecurity Emergency) (Human Coronavirus with Pandemic Potential) (Overseas Travel Ban Emergency Requirements) Determination 2020
Biosecurity (Human Biosecurity Emergency) (Human Coronavirus with Pandemic Potential) (Emergency Requirements for Cruise Ships) Determination 2020
The extension of the human biosecurity emergency period is necessary to ensure that these emergency requirements can continue to apply after 17 September 2020, in accordance with the view of the Minister for Health that it is necessary for those determinations to continue to apply given the ongoing nature of the COVID-19 pandemic and the continuing need for these emergency requirements.
The extension of the human biosecurity period is also necessary to ensure that the Minister for Health can continue to exercise the emergency powers under the Act to determine requirements or give directions necessary to prevent or control the entry, emergence, establishment or spread of COVID-19 in Australian territory.
The Instrument commences the day after the Instrument is registered on the Federal Register of Legislation. The Instrument amends the Declaration so that the Declaration, and the human biosecurity emergency period, finishes at the end of 17 December 2020. In accordance with section 476 of the Act, the Governor-General, on advice from the Minister for Health, may, if necessary, vary the Declaration, to extend the human biosecurity emergency period, more than once, up to a maximum of 3 months for each variation.
Background
On 5 January 2020, the WHO notified Member States under the International Health Regulations (2005) of an outbreak of pneumonia of unknown cause in Wuhan city, China. The pathogen is a novel (new) coronavirus. On 21 January 2020, ‘human coronavirus with pandemic potential’ became a ‘listed human disease’ under the Act.
On 30 January 2020, the outbreak was declared by the WHO International Regulations Emergency Committee to constitute a Public Health Emergency of International Concern. On 11 February 2020, WHO announced that the International Committee on Taxonomy of Viruses named the pathogen virus ‘severe acute respiratory syndrome coronavirus (SARS-CoV-2)’. It is closely related genetically to the virus that caused the 2003 outbreak of Severe Acute Respiratory Syndrome (SARS). The international name given by WHO to the disease caused by SARS-CoV-2 is Coronavirus disease 2019 (COVID-19).
On 17 February 2020, the Australian Health Protection Principal Committee endorsed the Australian Health Sector Emergency Response Plan (Health Sector Emergency Plan).
On 27 February 2020, the Prime Minister of Australia announced the Australian Government had endorsed and activated the Health Sector Emergency Plan.
On 18 March 2020, the Governor-General, on the recommendation of the Minister for Health, made the Declaration pursuant to section 475 of the Act declaring that a human biosecurity emergency exists in relation to the listed human disease ‘human coronavirus with pandemic potential’ (COVID-19) and specifying a human biosecurity emergency period.
On 14 May 2020, the Governor-General, on the recommendation of the Minister for Health, varied the Declaration pursuant to section 476 of the Act to extend the human biosecurity emergency period to 17 September 2020.
Emergency requirements and directions
Part 2 of Chapter 8 of the Act provides powers to deal with human biosecurity emergencies of national significance during a human biosecurity emergency period.
This includes the powers conferred on the Minister for Health under subsections 477(1) and 478(1) of the Act to determine emergency requirements or issue directions during a human biosecurity emergency period that the Minister for Health is satisfied are necessary to prevent or control the entry, emergence, establishment or spread of a declaration listed human disease in Australian territory or a part of Australian territory. The Minister for Health’s exercise of these powers is subject to further conditions and limitations under the Act.
The requirements that the Minister for Health may determine under section 477 include: requirements that apply to persons, goods or conveyances when entering or leaving specified places; requirements that restrict or prevent the movement of persons, goods or conveyances in or between specified places; and requirements for specified places to be evacuated.
As noted above, the Minister for Health has exercised the power under section 477 to determine various emergency requirements during the human biosecurity emergency period for COVID-19. An effect of extending the human biosecurity emergency period is that those determinations can, according to their terms and consistent with subsection 477(7) of the Act, continue to apply for the further duration of the period.
The directions that the Minister for Health may give under section 478 include: a direction to a person who is in a position to close premises, or prevent access to premises, to do so; a direction for the purpose of giving effect to or enforcing an emergency requirement determined under section 477; and directions to give effect to a recommendation made to the Health Minister by the WHO under Part III of the International Health Regulations.
The Instrument commences the day after it is registered on the Federal Register of Legislation. The Declaration, and the human biosecurity emergency period, will remain in force until the end of 17 September 2020 unless varied or revoked earlier.
Consultation
The Health Minister consulted, and the Instrument is supported by, the Director of Human Biosecurity (who is also the Commonwealth Chief Medical Officer) and the Director of Biosecurity (who is also the Secretary of the Department of Agriculture, Water and the Environment).
The Instrument is a non-disallowable legislative instrument under the Legislation Act 2003. The Act provides for the Instrument to be non-disallowable to ensure that the Australian government is able to take the urgent action necessary to manage a nationally significant threat or harm to Australia’s human health. A provision by provision description of the Instrument is contained in the Attachment.
ATTACHMENT
Biosecurity (Human Biosecurity Emergency) (Human Coronavirus with Pandemic Potential) Variation (Extension No.2) Instrument 2020
1 Name
Section 1 provides for the Instrument to be referred to as the Biosecurity (Human Biosecurity Emergency) (Human Coronavirus with Pandemic Potential) Variation (Extension No.2) Instrument 2020.
2 Commencement
Section 2 provides that the Instrument commences the day after it is registered.
3 Authority
Section 3 provides that the Instrument is made under section 476 of the Biosecurity Act 2015.
4 Schedules
Section 4 provides that each instrument specified in a Schedule to this Instrument is amended or repealed as set out in the applicable items in the Schedule concerned, and any other item in a Schedule to this instrument has effect according to its terms.
Schedule 1 Extension of human biosecurity emergency period
This Schedule provides for the Biosecurity (Human Biosecurity Emergency) (Human Coronavirus with Pandemic Potential) Declaration 2020 (the Declaration) to be amended.
Item 1 - Paragraph 7(b)
This items amends paragraph 7(b) of the Declaration to omit “September” and substitute “December”.
As amended, section 7 of the Declaration provides that the Declaration is in force from the commencement of the Declaration to its end on 17 December 2020. As a result, the human biosecurity emergency period under the Declaration will also end at the end of 17 December 2020.