News & Current Affairs

By Carley Hitchins


Christmas Island or Jail – what’s worse?

Australia’s biosecurity laws

After the first human-to-human transmission of the coronavirus in Australia,  Attorney-General, Christian Porter, has made clear the government will have no hesitation in exercising the pre-existing but as yet unused coercive powers to detain people against their will to prevent the spread of the virus.

So what powers do the federal government have to respond to the health crisis?

The Biosecurity Act 2015 (Cth) (“the Act”) is framed in terms that provide extensive powers to relevant officers. The Attorney-General has described these powers as “strange and foreign to many Australians”, but potentially necessary in the face of a pandemic.

Human biosecurity control orders

Under changes made to the Act in 2015, government authorities designated by the chief medical officer can make a human biosecurity control order to require an individual to do or not do certain things.

These include to:

  • Provide contact details
  • Regularly update an officer of their health status
  • Restrict movement by remaining at the individual’s place of residence for a specified period
  • Undergo decontamination
  • Provide body samples for diagnosis
  • Undertake treatment or receive a vaccination
  • To remain in Australia for up to 28 days
  • Be isolated at a medical facility

I should note, for a control order to be made there is no requirement for a person to actually be infected or for the officer to even reasonably believe or suspect that the person is infected.

There is an obvious preference for authorities that individuals consent to the control order, which is what occurred when Australians returning from Wuhan carried out their quarantine at Howard Springs and Christmas Island.

However, if a person refuses to consent to a control order, there is a power for the Director of Human Biosecurity to compel them. The maximum penalty for failing to comply with a control order is five years’ imprisonment, a fine of $63,000, or both.

On Tuesday the Attorney General said it is “not inconceivable” that control orders could lead to detention if individuals refused control orders but this was intended as a “last resort”.

There is also power to declare a human health response zone, which is what occurred on the Diamond Princess cruise ship. This may result in restrictions on entering or leaving a particular area and could potentially be applied to buildings, shopping centres, football stadiums and the like.

In addition to control orders, the Governor‑General may make a human biosecurity emergency declaration if the Health Minister is satisfied the powers are required to deal with emergencies involving threats or harm to human health on a nationally significant scale.

Under these laws, the Health Minister is able to determine “any requirement that he or she is satisfied is necessary to prevent entry or spread of a disease.” The requirement must be likely to be effective, appropriate and adapted to its purpose and no more restrictive or intrusive than is required in the circumstances. A human biosecurity emergency period can be imposed for up to 3 months.

A contravention of these requirements and directions also carries a maximum penalty of five years’ imprisonment, a fine of $63,000, or both.

While there is an obvious need to protect public health, that must be balanced with an individuals’ right to liberty and due process. There is very little independent oversight and safeguards under Australian biosecurity laws – which may be cured by the establishment of an independent statutory body to determine whether the coercive powers are being exercised in a lawful and proportionate manner.