What is the scope of government powers in response to COVID-19?

As the COVID-19 pandemic has rapidly escalated in the past few weeks, there has been a wave of unprecedented exercise of powers and rushed special legislation by the Federal and State/Territory Governments.

Though it has been initially difficult to navigate, the Commonwealth and State/Territories are now working together, following the signing of the National Partnership on COVID-19 Response on 13 March 2020, to respond to the outbreak of novel coronavirus.

What powers are available to the government?

Federal Government

Since the declaration of a “human biosecurity emergency” under the Biosecurity Act in relation to COVID-19 on the 18 March 2020,1 the Federal Health Minister has had expansive emergency powers to:

  • restrict the movement of persons, goods or conveyances;
  • require that places be evacuated; and
  • make directions to close premises,

which can be exercised up to 18 June 2020, unless the “human biosecurity emergency” is extended.2 The Governor-General may extend the period indefinitely, with each extension being for no longer than 3 months.3

The Director of Human Biosecurity also has expansive powers to create temporary quarantine areas (“human health response zones”) to reduce the risk of spread of COVID-19, and biosecurity officers have powers to require individuals to undertake certain biosecurity measures (e.g. movement restrictions and medical examination).4

State/Territory Governments

The States and Territories have very broad powers under each of their public health legislation, which each state and territory has used in its response to the spread of COVID-19 in Australia.

In NSW, the Minister for Health and Medical Research has wide powers under the Public Health Act 2010, to take actions and give directions considered necessary to deal with public health risks.5 Additionally, on 25 March 2020, the NSW Parliament enacted the COVID-19 Legislation Amendment (Emergency Measures) Act 2020 to amend various pieces of legislation to prepare services and institutions for the impacts of COVID-19.

In Victoria, there are general public health powers available to authorised officers to eliminate or reduce risks to public health (e.g. closure of premises, restriction on movement and information gathering).6 However, following the declaration of a state of emergency on 16 March 2020 in relation to COVID-19, the Chief Health Officer has the expansive power to give any direction that is reasonably necessary to protect public health.7

On the 29 January 2020, the Queensland Minister for Health and Minister for Ambulance Service declared a public health emergency in relation to COVID-19. By declaring a public health emergency, this gave emergency officers access to an exhaustive list of powers to do such things as restrict the movement of people and entry into premises.8 On 19 March 2020, the Queensland Government enacted the Public Health and Other Legislation (Public Health Emergency) Amendment Act 2020, to give the Chief Health Officer expansive additional powers, including the ability to give any direction considered necessary to protect public health.9

How have government powers been exercised?

Restrictions on movement and gatherings

As at the date of publication, people are required to stay at home except for certain specified reasons (e.g. shopping for essentials, travelling to work or education, exercise, medical or caring reasons) and public gatherings are limited to 2 people (with certain exceptions). As the restrictions are being implemented by State/Territory Governments, the specific restrictions and measures vary.10

Closures of ‘non-essential’ businesses and premises

The Federal Health Minister has used his emergency powers to close retail outlets at Australian international airports (subject to certain exceptions and exemptions).11

The State/Territory Governments have used their powers under public health legislation close or restrict trading of certain businesses.12 As at the time of publication, the businesses that are subject to closure or restricted trading include:

  • retail food outlets (with exceptions for takeaway and delivery services);
  • pubs, registered and licenced clubs, hotels (with some exclusions);
  • leisure and recreation facilities;
  • entertainment venues;
  • outdoor and indoor markets (not including food markets);
  • beauty and personal care services;
  • gyms and other sporting venues; and
  • outdoor recreation facilities.

As the restrictions are being implemented by State/Territory Governments, the specific restrictions and measures vary.

Establishment of temporary quarantine zones in hotels

On the 25 March 2020, the Director of Human Biosecurity used powers available under the Biosecurity Act to create “human health response zones” to set up a temporary quarantine zone at the Swissotel in Sydney for returning Australian citizens and permanent residents.13

From the 28 March 2020, all travellers arriving in Australia are required to undertake a mandatory 14-day quarantine at designated facilities (e.g. hotel), at their port of arrival.

In NSW, the Commissioner of Police can designate any premises or type of premises as being appropriate to be a quarantine facility.14 In Victoria, the Deputy Chief Health Officer has issued direction and detention notices, under the Public Health and Wellbeing Act, to international arrivals in Victoria, requiring a 14-day quarantine in a designated hotel.15 In Queensland, a direction was issued on 29 March 2020 requiring new international arrivals (subject to certain exemptions) to self-quarantine for 14 days at a hotel, other place of accommodation, or other place nominated by the Chief Health Officer or emergency officer.16

Exportation and pricing restrictions on certain products

From the 30 March 2020, exportation from Australia of the following goods is prohibited:

  • disposable face masks, gloves and gowns;
  • goggles, glasses or eye visors used to limit transmission of coronavirus;
  • alcohol wipes; and
  • hand sanitiser.17

The Federal Health Minister has also used his powers under the Biosecurity Act to set a requirement that no person can supply, or offer to supply, those goods for more than 120% of the value for which they were purchased during the human biosecurity emergency. This applies to the goods stated above, if initially purchased on or after 30 January 2020.18

Border restrictions

The Federal Health Minister, Greg Hunt, has used his expansive emergency powers under the Biosecurity Act to restrict Australian citizens and permanent residents from travelling overseas (subject to certain exemptions)19 and restrict entry of international cruise ships into Australian ports.20

State/Territory Governments are also starting to set restrictions on the entry of persons from other States and Territories. For example, in Queensland, returning Queenslanders from COVID-19 hotspots must self-quarantine for 14 days and interstate travellers are not allowed to enter, unless they fall under an exemption.21 As at the date of publication, NSW and Victoria do not have COVID-19 related interstate border restrictions.

What does this mean for your business?

As the Federal and State/Territory Governments have changed their position in relation to COVID-19 regularly over the past few weeks, all businesses should monitor the situation closely and implement changes accordingly. This is more important than ever as there are various penalties available to the Federal and State/Territory Governments for non-compliance by individuals and corporations.

The information in this article is accurate as at 3 April 2020.

1. Biosecurity (Human Biosecurity Emergency) (Human Coronavirus with Pandemic Potential) Declaration 2020 (Cth).
2. Biosecurity Act 1995 (Cth) ss 477(3), 478(3).
3. Biosecurity Act 1995 (Cth) s 476.
4. Biosecurity Act 1995 (Cth) s 113.
5. Public Health Act 2010 (NSW) s 7.
6. Public Health and Wellbeing Act 2008 (Vic) s 190.
7. Public Health and Wellbeing Act 2008 (Vic) s 200(1).
8. Public Health Act 2005 (Cth) s 345.
9. Public Health Act 2005 (Qld) s 362B.
10. Minister for Health and Medical Research (NSW), Public Health (COVID-19 Restrictions on Gatherings and Movement) Order 2020 (30 March 2020); Deputy Chief Health Officer (Communicable Disease) (Vic), Stay at Home Directions (30 March 2020); Chief Health Officer (Qld), Home confinement Direction (29 March 2020).
11. Biosecurity (Human Biosecurity Emergency) (Human Coronavirus with Pandemic Potential) (Emergency Requirements–Retail Outlets at International Airports) Determination 2020 (Cth).
12. Minister for Health and Medical Research (NSW), Public Health (COVID-19 Restrictions on Gatherings and Movement) Order 2020 (30 March 2020), Chief Health Officer (Qld), Non-essential business, activity and undertaking Closure Directions (No. 4) (31 March 2020).
13. Biosecurity (Human Health Response Zone) (Swissotel Sydney) Determination 2020 (Cth).
14. Minister for Health and Medical Research (NSW), Public Health (COVID-19 Air Transport Quarantine) Order 2020 (28 March 2020).
15. Deputy Chief Health Officer (Communicable Disease) (Vic), Direction and Detention Notice (28 March 2020).
16. Chief Health Officer (Qld), Self-quarantine for persons arriving in Queensland from overseas Direction (28 March 2020).
17. Customs (Prohibited Exports) Amendment (COVID-19 Human Biosecurity Emergency) Regulations 2020 (Cth).
18. Biosecurity (Human Biosecurity Emergency) (Human Coronavirus with Pandemic Potential) (Essential Goods) Determination 2020 (Cth).
19. Biosecurity (Human Biosecurity Emergency) (Human Coronavirus with Pandemic Potential) (Overseas Travel Ban Emergency Requirements) Determination 2020 (Cth).
20. Biosecurity (Human Biosecurity Emergency) (Human Coronavirus with Pandemic Potential) (Emergency Requirements) Determination 2020 (Cth).
21. Chief Health Officer (Qld), Border Restrictions (No.3) (2 April 2020).

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