This article was written by Kim O'Connell, John Swinson, Tamara Akl and Louisa Dimarco.
Companies around Australia are developing contingency plans for the spread of the novel coronavirus.
What should they expect in the way of Government action and what are the likely impacts of an increase in infections in Australia and also the potential impacts of the measures that Australian Governments have implemented to minimise the impact of the virus on the Australian community? What further measures could be available to Governments if the present measures prove inadequate to slow the rate of infection?
The Commonwealth Government has triggered an Australian Health Sector Emergency Response Plan for Novel Coronavirus (COVID-19) (Plan). The Commonwealth Government is acting in coordination with State and Territory governments to address the threat of a pandemic that is posed by COVID-19. The Plan provides for a scaled response, depending on the spread of disease.
We have been through the Initial Action phase and are currently in the "Targeted Action" stage of the Plan, which involves focus on ensuring a proportionate response, support and maintain quality care and communicating "to engage, empower and build confidence in the community". Details of key measures that have been and which could be taken by the Commonwealth and State and Territory Governments are set out below.
Businesses globally are facing significant impacts from these health measures. For example, some have forecast that one in five workers could be off sick at the peak of the outbreak and there are concerns that a substantial portion of the workforce in the health sector could be unavailable due to illness or quarantine requirements. The British Government has indicated that a widespread outbreak would take between two and three months to reach its peak, which could then last a month, before a decline of a further two to three months. If infection rates become more widespread in Australia, there could be a prolonged period for which special biosecurity and health protection measures are likely to apply.
Governor-General declares Human Biosecurity Emergency
On Wednesday 18 March 2020, the Commonwealth Governor-General declared COVID-19 to be a "human biosecurity emergency" under the Biosecurity Act 2015 (Cwlth). The Governor-General may declare that a "human biosecurity emergency" exists if the Commonwealth Health Minister is satisfied that "a listed human disease is posing a severe and immediate threat, or is causing harm, to human health on a nationally significant scale" and that the measure is necessary to prevent or control the disease.[1] This declaration gives the Health Minister broad power to give any direction to any person that the Health Minister is satisfied is necessary to prevent or control the spread of COVID-19 in Australia. [2]
The declaration will apply for three months and may be extended for an additional three months if the Health Minister is satisfied that COVID-19 is continuing to pose a severe and immediate threat, or is continuing to cause harm, to human health and the extension is necessary to prevent or control the spread of COVID-19 in Australia.[3]
An individual must comply with the emergency requirements and directions made by the Health Minister under this declaration. If an individual does not comply with the emergency requirements and directions, they face imprisonment for 5 years and/or a fine of $63,000.
Border closure and/or controls
Given the Government has declared COVID-19 a "listed human disease" under the Biosecurity Act 2015, there are a range of powers that may be exercised with respect to the virus. We have already seen the Government take a number of minimisation measures, including border closure for international arrivals, restrictions for international departures and special measures (including a requirement for self-isolation) in relation to others. Additionally, the Government has announced that the first human biosecurity emergency requirement in Australia will be to formally prohibit international cruise ships from entering Australian ports. The initial duration of this restriction is 30 days.[4]
The Plan also provides for specific requirements when entering and exiting Australian borders, such as enhanced screening. The Biosecurity Act provides the Health Minister with the power to impose requirements on individuals entering or leaving Australian territory, including forced health screening processes.[5] Individuals may be liable for civil fines for failure to comply with these requirements, even if an individual is unable to comply with the requirements.[6]
Human health response zones
The Government has the power to identify human health response zones and to apply entry and exit requirements to those zones.[7] The Commonwealth Attorney General, Christian Porter, has indicated[8] that it is the first time such a zone had been used in Australia and said that the measure could be applied, for example, to buildings, shopping centres or football stadiums. To date, these zones have been declared in relation to each of the centres used to quarantine Australians after their return from the Diamond Princess Cruise Ship.
The Government also has the power to establish permanent or temporary biosecurity monitoring zones, such as at entry points into Australia, or within designated areas and to control the movement of goods within these zones.[9]
Infection control measures
Specific measures under the Biosecurity Act 2015 can be employed to require individuals to take certain measures, including to:
- remain at their residence for a specified period;
- provide body samples for diagnosis;
- undergo quarantine at a medical facility;
- undergo treatment or receive a vaccination; and
- regularly update an officer as to their health status.
These measures may be enforced pursuant to a "human biosecurity control order", which can be issued in relation to an individual under section 60 of the Biosecurity Act. The order may only be imposed on an individual if the relevant officer is satisfied that the individual has one or more signs or symptoms of COVID-19, or has been exposed to COVID-19 directly or through another individual, or if the individual has failed to comply with an entry requirement in relation to COVID-19.
An individual is only required to comply with biosecurity measures under a human biosecurity control order if the individual consents to the measure, or if the Director of Human Biosecurity has given a direction that the individual must comply with the order.[10] If an individual fails to comply with these requirements, the individual may be liable for imprisonment for 5 years and/or a fine of $63,000.
The Government may also apply these measures to a class of individuals where the biosecurity measure is "appropriate and adapted to prevent, or reduce the risk of, the disease entering, or emerging, establishing itself or spreading in, Australian territory or a part of Australian territory".[11] An individual who fails to comply with such a biosecurity measure may be liable for a civil penalty of up to $25,000.
New models of care
The Government has also taken steps under the Plan to extend to special measures to enable coronavirus patients to be treated while in isolation, including new provisions to enable telehealth, electronic prescribing and home medicine delivery to facilitate home based care for those in isolation and especially vulnerable groups (including those aged over 70).
The Plan also provides for residents within aged care facilities to be tested for COVID-19 or influenza without leaving the premises, reducing the risks to the elderly from being exposed to high risk areas such as hospitals and clinics. The Government has also released specific restrictions on visitors to aged care facilities, including no visits from children under 16 years of age without a special exception, and no more than two visitors at a time with visits not to take place in public areas of the facility.
The Government also plans to fund 100 private practice respiratory clinics dedicated to treating people with mild to moderate COVID-19 symptoms. This measure aims to reduce the risk of further transmission of COVID-19, help to optimise the availability of personal protective equipment (PPE) for those on the front line of care, and help reduce the pressure on hospital emergency departments.
Stockpile and managing resources
The Plan also includes provisions intended to ensure the management of health care capacity and planning for surge requirements. As a number of press reports have indicated, this may mean that elective surgeries, for example, are cut, during periods of increased demand on the health system.
There is provision for a national stockpile of necessary medical supplies, such as essential pharmaceuticals and PPE (masks, gloves, aprons, protective eyewear). For example, the Therapeutic Goods Administration (TGA) has been actively monitoring supplies of face masks in Australia. The Government recently organised for the release of more face masks for healthcare professionals from the national medicines stockpile, and has supported increases in local manufacture and importation of masks.
Some governments around the world have taken extraordinary steps with respect to medical equipment, for example President Macron has announced France has requisitioned face masks, to ensure they are available to health professionals working to combat the virus in France. This measure has been criticised by the Belgian Health Minister, who claims that it is impeding suppliers from delivering to other countries as part of existing contracts.
The TGA coordinates the national Medicines Shortages Working Group to discuss emerging issues in relation to potential medicine shortages and their management. The TGA has advised that stockpiling of medicines is unnecessary and could result in consumers being unable to access certain medicines.[12] The TGA emphasised that medicines sponsors are legally required to report current and anticipated shortages of prescription medicines and certain over-the-counter medicines.
Response by States and Territories
The States and Territories have followed the precautionary measures advised by the Commonwealth Government in accordance with the Plan to slow the spread of COVID-19. In particular, Queensland, Victoria, South Australia, Western Australia, Tasmania and the Australian Capital Territory have all recently declared COVID-19 to be a public health emergency or state of emergency under their applicable public health legislation.[13]
Under a declared public health emergency or state of emergency, authorised officers at the direction of the relevant Health Minister or Chief Executive have powers to eliminate or reduce the spread of COVID-19 by detaining people, restricting movement, preventing entry to premises, or providing any other direction that an authorised officer considers reasonable to protect public health.
A declaration of this sort extends for a specified period of time, to enable the State and Territory governments to implement additional powers to enforce the Commonwealth Government's Plan. For instance, Queensland and Victoria have implemented penalties for non-compliance with self-quarantine requirements. In Queensland, an individual may be fined up to $13,345 (or $66,725 for a corporation) for non-compliance with self-quarantine requirements. Similarly, in Victoria an individual may be fined up to $19,827 (or $99,132 for a corporation) for non-compliance with self-quarantine requirements.
Comparably, New South Wales has not declared COVID-19 a state of emergency but the State has exercised its power to deal with public health risks generally under the Public Health Act 2010 (NSW) and has prohibited holding mass gatherings of 500 or more attendees in an undivided outdoor space and gatherings of 100 or more people in a single undivided indoor space and additionally has prohibited individuals attending such gatherings.[14] There are specified exceptions which include airports, universities, schools (but only for their ordinary operations, not events involving the community beyond staff and students) public transport, hospitals, hotels and shopping centres. This order extends to 17 June 2020. Penalties for non-compliance with this order ranging from a fine of up to $11,000 for an individual (or $55,000 for a corporation) or 6 months imprisonment, with an additional fine of $5,500 for an individual (or $27,500 for a corporation), for each day the offence continues[15].
Separately, Queensland, New South Wales and Tasmania have the power to declare a biosecurity emergency order in relation to the spread of COVID-19.[16] These additional powers are similar to those provided by the Biosecurity Act 2015 (Cwlth). Following, the Governor-General's human biosecurity emergency declaration it will be interesting to see if these States follow with similar declarations.
What can individual businesses do?
In the light of the potential for widespread infection, businesses should continue to ensure that they are aware of the current legal measures that have been implemented to combat the virus and those that will be implemented going forward. The effectiveness of the Government's Plan rests on businesses supporting outbreak investigation and management, as well as making sure that they encourage individual isolation of suspected cases and voluntary quarantine in accordance with precautionary guidelines (for example for employees returning from overseas areas of infection).
It is also important that businesses provide information to their employees concerning infection risk management steps – from handwashing to self-isolation in the event infection or exposure to the virus is suspected.
Businesses can also continue to consider risk mitigation strategies if key personnel are unable to attend or participate in projects as planned due to quarantine, sickness, or carer's responsibilities.
The information in this article is correct as at 19 March 2020. The situation is developing rapidly and in unexpected ways, so what is true today may soon be out of date. Please take care and seek up to date information where required.
To view the Commonwealth Government's recent restrictions please see the following media statement from the Prime Minister dated 18 March 2020: https://www.pm.gov.au/media/update-coronavirus-measures.
[1] Biosecurity Act 2015 (Cth) s 475
[2] Biosecurity Act 2015 (Cth) s 478
[3] Biosecurity Act 2015 (Cth) s 476
[4] Biosecurity (Human Biosecurity Emergency) (Human Coronavirus with Pandemic Potential) (Emergency Requirements) Determination 2020
[5] Biosecurity Act 2015 (Cth) ss 44, 45
[6] Biosecurity Act 2015 (Cth) s 46(4)
[7] Biosecurity Act 2015 (Cth) s 113
[8] In an interview on Radio National, as reported in The Guardian "What power does the Australian Government have over you during crisis? By P Karp, 3 March 2020
[9] Biosecurity Act 2015 (Cth) Pt 6
[10] Biosecurity Act 2015 (Cth) s 74
[11] Biosecurity Act 2015 (Cth) s 51(5)
[12] 'TGA response to coronavirus (COVID-19)' media release, 13 March 2020
[13] Public Health Act 2005 (Qld) s 319; Public Health and Wellbeing Act 2008 (Vic) s 198; South Australian Public Health Act 2011 (SA) s 87; Public Health Act 2016 (WA) s 167; Public Health Act 1997 (Tas) s 14; Public Health Act 1997 (ACT) s 119
[14] Public Health Act 2010 (NSW) s 7; order available at https://www.health.nsw.gov.au/Infectious/diseases/Documents/Public%20Health%20(COVID-19%20Mass%20Gatherings)%20Order%202020.pdf
[15] Public Health Act 2010 (NSW) s 10.
[16] Biosecurity Act 2014 (Qld) s 113; Biosecurity Act 2015 (NSW) s 44; Biosecurity Act 2019 (Tas) s 163
