Who’s in control of Australia’s response to coronavirus? Part 1: Legal frameworks

The situation in Australia with human coronavirus is deteriorating.

454 cases so far, and 5 deaths, but cases are rising rapidly.  See here for updates.

Globally: 6,800 deaths and rising.

Australia’s Chief Medical Officer – Australia’s Director of Human Biosecurity – has advised the Council of Australian Governments (COAG) that gatherings of more than 500 people should be cancelled.

Social distancing measures are likely to be strengthened in future.

Anyone entering Australia must self-isolate for 14 days.

Universities like mine are migrating their teaching online, in order to support social distancing efforts.

So who is running Australia’s response to covid-19?

Usually, when a disease outbreak occurs, it is dealt with by States and Territories using their own processes and resources.

As the scale of the threat, or impact, of an outbreak increases, State/Territory actions may be supplemented by national coordination and resources, within – and beyond – the health sector.  State and federal Health Ministers may also formally declare a state of emergency, clearing the way for the exercise of potentially broad, executive, emergency powers.

Australia has robust operational plans and legislative frameworks for managing outbreaks.

But tracking government actions in terms of those plans, and relating actions back to the underlying legislative framework, is more difficult than it ought to be.

The distinctions between the various stages of the response are important because public health officials and political leaders may be exercising different legislative powers, and the public interests involved (including restrictions on civil liberties) will be balanced in different ways according to the scale of the threat and response.

Significant penalties may also be imposed for failure to comply.

Australia has a complex federal system.  In understanding Australia’s response to coranavirus, I think it helps to distinguish between the activation and escalation of operational plans and frameworks, and the activation and escalation of legal powers.

This is Part 1 of a two-part post.

Jurisdictional health challenge: public health legislation

States and Territories have primary responsibility for responding to disease outbreaks under the Public Health Acts (in NSW, the Public Health Act 2010, and its regulations).

Key state functions include investigating possible cases, contact tracing, collecting surveillance data, treating sick patients, and public communications.

As mentioned in a previous post, “Novel Coronavirus 2019” was scheduled under the Public Health Act 2010 (NSW) by executive order on 21 January.

This made covid-19 a reportable disease in NSW, both by medical practitioners and laboratories.  Persons with covid-19 must take precautions, they may be directed to undergo medical examination, and they may be subject to public health orders where their behaviour poses a risk to public health.

Distinct from declaring a public health emergency, the Public Health Act 2010 also gives the Health Minister a broad power to give directions to reduce risks to public health (s 7).

Consistent with advice from the Commonwealth Chief Medical officer (Dr Brendan Murphy), on 15 March the NSW Health Minister issued an executive order prohibiting major events that involve 500 or more people.

The NSW Health Minister has a similar power to issue executive orders to reduce public health risks during a state of emergency. However, unlike Victoria, NSW has not declared a State of emergency, and may not need to, given the power contained in PHA section 7.

Escalation: national biosecurity laws

Australia’s first case of covid-19 was reported by federal Health Minister Greg Hunt MP on 25 January, in a man who flew from Guandong to Melbourne.

On that date, Minister Hunt advised that “Human coronavirus with pandemic potential” had already been declared a “Listed human disease” under the Biosecurity Act 2015, “enabling the use of enhanced border measures”.  [See here for the current legislative instrument setting out the full set of Listed Human Diseases].

The listing of coronavirus also led to the activation of the National Incident Centre, and regular meetings of the Australian Health Protection Principle Committee – the key decision-making committee for public health emergencies.

Declaring that a disease is a “listed human disease” Under the Biosecurity Act 2015 (Cth) is a condition precedent to the Health Minister imposing enhanced border measures.  These may encompass specific entry and exit requirements (ss 44-45), restrictions on incoming aircraft (s 49), and preventive biosecurity measures (s 51).

For example, individuals arriving on airplanes or vessels subject to biosecurity control may be required to be screened to determine if they have been infected or exposed to a listed human disease: see s 44 and Biosecurity (Entry Requirements) Determination 2016, s 6.

As explained in a previous post, the listing of coronavirus is also a condition precedent to the imposition, by human biosecurity officers, of biosecurity control orders on individuals.

These orders may encompass a range of specific measures, such as a requirement to remain at home (s 87), to provide body samples for analysis (s 91) or remain isolated at a specified medical facility (s 97).

The powers in the federal Biosecurity Act go well beyond those in the NSW Public Health Act in terms of seeking to balance the precautionary principle with the requirement for proportionality and the least restrictive alternative.

Subject to the appointment of state and territory public health officials as human biosecurity officers under the Biosecurity Act 2015, as envisaged by ss 562-566, these federal powers could be exercised and enforced.

Nevertheless, on a number of occasions Dr Murphy has suggested he will not exercise his coercive powers.

In a press conference on 29 January, he said: “For returned travellers from Hubei province, we are asking for them to remain isolated. We don’t intend to use enforcement powers”.

More recently he stated: “Under the Biosecurity Act in most cases I can compel people to have tests or be detained if they’re a biosecurity risk”. “[B]ut we don’t use those powers and hope never to use them.  People are generally co-operative”.

Statements like this may be an attempt to calm people and to encourage voluntary cooperation, or might instead reflect the assumption that the States have adequate powers to enforce compliance with biosecurity controls.

Nevertheless, assuring people that biosecurity controls are voluntary is unhelpful if a deteriorating situation later compels their use.

It’s vital for the public to know when their cooperation is voluntary and when disobedience could result in penalties.

At any rate, it’s clear that since 21 January – when it became a “Listed human disease” under Commonwealth law, “human coronavirus with pandemic potential” ceased being simply a jurisdictional health challenge.

Escalation: national state of emergency?

Under the Biosecurity Act 2015, the federal Health Minister may exercise broad, emergency powers where the Governor General has declared that a “Listed human disease” constitutes a “human biosecurity emergency” (chapter 8, Part 2).

This is no longer an unrealistic scenario if Australia’s situation deteriorates.  If the sharp rise in cases continues, it could support the case for mandatory, strengthened social distancing measures, agreed to by the National Security Committee and implemented by an executive instrument signed by the Health Minister (see ss 477-478).

The case for declaring a national state of emergency might also arise if the surge in cases of covid-19 overwhelmed the capacity of the health care system to treat cases effectively.

I’m surprised that schools are still open in NSW and that more limiting social distancing measures have not been put in place.

The Australian Health Protection Principal Committee, not to mention the National Security Committee, will be deliberating these matters, informed by models of likely spread if various drastic – and not so drastic – restrictions are imposed.  Keeping the economy running, and businesses solvent, is also critical.

The reason we know that Australia is currently experiencing a surge of cases of community transmission is because, on 11 February, the Chief Medical Officer added “Human coronavirus with pandemic potential” as a temporary addition to the National Notifiable Disease List, formalising national reporting by the States and Territories.

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