How the Federal Government’s Emergency Restrictions on Coronavirus (COVID-19) work

25 March 2020

In light of the Federal Government’s recent emergency response to coronavirus (COVID-19), this resource explains the basis for, and extent of, the Federal Government’s powers as of 25 March 2020.

On 18 March 2020, the Prime Minister announced the Governor-General had declared a human biosecurity emergency to respond to the risks the COVID-19 pandemic poses to human health and the need to control its spread in Australia.[1]

What is a human biosecurity emergency?

Under the Biosecurity Act 2015 (Cth) (the Act) a human biosecurity emergency can be declared where it is reasonably necessary to prevent or control disease posing a severe and immediate threat of harm.[2]

The Act allows for a human biosecurity emergency period to be as long as necessary to prevent or control COVID-19, but no longer than three months.[3] However, the human biosecurity emergency period may be varied or extended for up to three months, and the three month extension can be used more than once.[4]

An extension may only occur where the Health Minister is satisfied that COVID-19 continues to pose a severe and immediate threat, or cause harm on a national scale, and the extension is necessary to prevent or control the entry, emergence, establishment or spread of COVID-19 in Australia.

Powers under the Act

The human biosecurity emergency declaration gives the Federal Health Minister broad powers to determine any emergency requirements or give any direction to any person where the Federal Health Minister is satisfied the direction is necessary to prevent or control the spread of COVID-19.[5]

The first emergency requirement made under these powers was announced on 18 March 2020, where the Prime Minister made a declaration to formally prohibit international cruise ships from entering Australian ports for 30 days.[6]

What restrictions are in place in response to COVID-19 so far?

At the time of publication, the National Cabinet has accepted the Australian Health Protection Principal Committee’s (AHPPC) advice and issued the following declarations:[7]

  • prohibit outdoor mass gatherings of more than 500 people from 16 March 2020;
  • require anyone who has arrived in Australia from overseas to self-isolate for 14 days from 15 March 2020;
  • prohibit indoor gatherings of more than 100 people from 18 March 2020;
  • restrictions on visits to aged care residents from 18 March 2020;
  • a travel ban effective from 25 March 2020;
  • extend its travel ban to include all foreign nationals from 9pm 20 March 2020; and
  • close of particular non-essential businesses from 12pm 23 March 2020, extended on 12pm 25 March 2020.

The state and territory governments hold the power to implement most of the above restrictions.

Restrictions made using Federal Government powers are described below.

Visits to aged care facilities

The limitations on visits to aged care residents arise from the Federal Government’s powers during a human biosecurity emergency, which include giving any direction or making any requirement reasonably necessary to prevent or control COVID-19.[8]

These restrictions, as recommended by the AHPPC, include:

  • limiting visits to aged care residents to a short duration;
  • limiting visits to a maximum of two immediate social supports or professional services at one time, per day;
  • visits will no longer be conducted in communal areas;
  • no large group visits or gatherings are permitted;
  • children under 16 years or less are only permitted to visit by exception; and
  • phone or video calls must be made available to all residents to enable regular communication with family members and visitors are encouraged to practise social distancing where possible.[9]

Travel ban

On Wednesday 18 March 2020, the National Security Committee of Cabinet raised the advice for all overseas travel to the highest level, advising all Australian citizens not to travel overseas to any country.[10] The do not travel warning was raised to a travel ban, effective from 25 March 2020.[11]

The Federal Government implemented this travel ban under the Act, using their broad powers to determine any emergency requirement or direction necessary to reduce the spread of COVID-19 to Australia and other countries.

The Prime Minister has stated limited exemptions will be managed by the Australian Border Force and may apply to essential travel (such as for work), citizens who ordinarily reside overseas and for compassionate and humanitarian grounds.

The Federal Government’s Smart Traveller website says the ban applies to overseas countries without exception.

From 9pm on 20 March 2020, international travel to Australia was limited to Australian citizens, permanent residents and their immediate families, effectively closing the borders to any foreign visitors.[12] Anyone arriving in Australia must self-isolate for 14 days, which is being enforced by states and territories.[13]

Penalties

Refusing or failing to comply with a direction or requirement made under the Act may result in up to 5 years imprisonment and/or a fine of up to $50,000.[14]

If you receive a fine, you should seek legal advice.

What to do if you or your family receive directions

If you or your family are directed to do something using the powers outlined in this resource, you can get legal advice through Justice Connect.

Apply for legal help

If you have a legal problem related to COVID-19, apply for free legal help from Justice Connect.

Apply now

Accuracy

This resource is accurate as at 25 March 2020. You should review the Prime Minister’s website for the most up to date information.

Jurisdiction

This is a resource outlining the Federal measures in place.

References

[1] This declaration is made on recommendation of the Health Minister, see Prime Minister of Australia media alerts, 18 March 2020, < https://www.pm.gov.au/media/update-coronavirus-measures>

[2] Biosecurity Act s 475 (the Act).

[3] The Act s 475(4).

[4] The Act s 476.

[5] The Act ss 477 and 478.

[6] Prime Minister of Australia media alerts, 18 March 2020, < https://www.pm.gov.au/media/update-coronavirus-measures>

[7] Prime Minister of Australia media alerts, 18 March 2020, < https://www.pm.gov.au/media/update-coronavirus-measures>

[8] The Act ss 477 and 478.

[9] Prime Minister of Australia media alerts, 18 March 2020, < https://www.pm.gov.au/media/update-coronavirus-measures>

[10] Prime Minister of Australia media alerts, 18 March 2020, < https://www.pm.gov.au/media/update-coronavirus-measures>

[11] Prime Minister of Australia media alerts, 24 March 2020, < https://www.pm.gov.au/media/update-coronavirus-measures-24-March-2020 >

[12] Prime Minister of Australia media alerts, 19 March 2020, < https://www.pm.gov.au/media/border-restrictions >

[13] Prime Minister of Australia media alerts, 16 March 2020 < https://www.pm.gov.au/media/coronavirus-measures-endorsed-national-cabinet> and 18 March 2020, < https://www.pm.gov.au/media/update-coronavirus-measures>

[14] The Act s 479.

 

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