INTRODUCTION

The government controlling human behaviour is no longer a distant concept in a COVID-19 world. Control of human behaviour through government orders, requirements and directions have become part of our vernacular and behavioural patterns. But how far do these powers go? Can the government make orders to take a COVID test? Or if a vaccine becomes available, can Australians be required to take this vaccine?

There are three means available for governments to control human behaviour in response to a public health concern. These options have granted powers to the government to make new laws and requirements on individuals to comply in response to COVID-19:

This article will focus on the powers of government to make determinations and directions concerning measures on human behaviour based on public health.

A. THE COMMONWEALTHS POWERS DECLARING A HUMAN BIOSECURITY EMERGENCY

The Health Ministers broad emergency powers under sections 477 and 478 of the Biosecurity Act 2015 (Cth) are activated in response to the declaration of a human biosecurity emergency by the Governor General.

A human biosecurity emergency is declared in circumstances including where a listed human disease is posing a severe and immediate threat, or is causing harm, to human health on a nationally significant scale under section 475(1)(a).

Under sections 477, the Health Minister may determine any emergency requirements during a human biosecurity emergency period that the Minister is satisfied is necessary to:

I. Prevent or control any of the following, in relation to the disease in Australia or any part of Australia:

II. Prevent or control the spread of the disease to another country

III. Give effect to a recommendation from the World Health Organization (WHO) under Part III of the International Health Regulations in relation to the disease.

Requirements which may be made that control human behavior may include:

These have been evident in the ban on overseas travel, cruise ships and the number of people at select venues, for example.

Under section 478, the Health Minister may give directions to any person that the Minister is satisfied is necessary to also achieve the above criteria. These refer to individual directions.

Directions which control human behavior may include:

These requirements and/or directions may be given despite any provision of any other Australian law.

A person who fails to comply with a requirement determined under either section may constitute an offence under section 479, with a maximum penalty of imprisonment for 5 years or 300 penalty units (approximately $66,600), or both.

B. THE POWERS OF THE STATES AND TERRITORIES PUBLIC HEALTH RISKS

The National Partnership on COVID-19 Response and the Australian Health Sector Emergency Response Plan for Novel Coronavirus (COVID-19) (commenced on 27 February 2020) confirms that all States and Territories have public health responsibilities pursuant to Federal legislation.

However, the primary responsibility for responding to such health risks and implementing measures controlling human behavior in response to COVID-19 rests with the State and Territory governments, who reserve the powers to respond differently to, though substantially consistent with, the opinions formed by the National Cabinet.

These powers are available to States and Territories through their respective Public Health and Biosecurity Acts.

i. NSW PUBLIC HEALTH LAWS

In NSW, where the Minister for Health considers on reasonable grounds that a situation has arisen that is, or is likely to be a risk to public health, section 7 of the Public Health Act 2010 (NSW) gives the Minister power to take any action and may by any order give any directions as the Minister considers necessary to deal with the risk and its possible consequences.

An order may also specify any part of NSW to be a public health risk area and may contain directions considered necessary by the Minister to reduce or remove the risk, segregate or isolate the inhabitants and prevent access to the area.

A failure to comply without a reasonable excuse may constitute an offence with a maximum penalty of imprisonment for 6 months or a fine of up to $11,000 (or both), with an ongoing fine of $5,500 each day the offence continues.

Corporations who fail to comply with a direction face a maximum fine of $55,000, with an ongoing fine of $27,500 each day the offence continues.

In relation to further implications of these powers on controlling human behaviour, the Minister, provided they consider it necessary, may make an order giving directions for each person with symptoms of COVID-19 to undertake a compulsory test as dealing with the risk and its possible consequences.

This direction may then be enforced with the maximum penalties above. The same conclusion is likely to apply if a vaccine becomes available and the Minister makes an order under these provisions.

ii. NSW BIOSECURITY LAWS

Under the Biosecurity Act 2015 (NSW), if activated in the case of an emergency under section 122, an authorised officer may issue general or individual biosecurity directions, which includes:

General biosecurity directions include:

Individual biosecurity directions include:

(a) to ensure the person discharges a biosecurity duty of the person under this Act;

(b) to ensure that the person remedies a contravention, suspected contravention or likely contravention by the person of a requirement imposed by or under this Act;

(c) to prevent, eliminate, minimise or manage a biosecurity risk posed by a dealing of the person, or suspected dealing of the person, with biosecurity matter, a carrier or a potential carrier.

Based on the expansive application of these general and individual directions, the State under these laws may have the power to enforce a vaccine if one becomes available, by reference to a general biosecurity direction to eliminate or minimize a biosecurity risk posed by COVID-19, or an individual biosecurity direction to ensure a person discharges a biosecurity duty of the person.

A failure to comply with a biosecurity direction, without a reasonable excuse, is a category 2 offence.

The maximum penalty for a category 2 offence under NSW Biosecurity Law is $220,000 for an individual, with an ongoing fine of $55,000 each day the offence continues. The maximum penalty for a corporation is $440,000, with an ongoing fine of $110,000 each day the offence continues.

Where an offence is committed negligently (to the criminal standard of proof), the maximum penalty for an individual is $1.1 million, with an ongoing fine of $137,000 each day the offence continues. For a corporation, the maximum penalty is $2.2 million, with an ongoing fine of $275,000 each day the offence continues.

C. SUMMING UP

So, can the Government make it a requirement to receive a COVID vaccine if one becomes available? This power may be available under both Commonwealth and NSW jurisdictions. If applicable, failure to comply under either of these directions or requirements may attract pecuniary penalties and/or imprisonment.

The Commonwealths powers under a human biosecurity emergency may include determining any emergency requirements and giving directions to any person. These requirements and/or directions may be given despite any provision of any other Australian law.

Under NSW Public Health laws, the Minister for Health may by any order give any directions as the Minister considers necessary to deal with the risk and its possible consequences. Under NSW Biosecurity laws, the Minister has expansive powers to give general and/or individual directions including to eliminate or minimize a biosecurity risk.

Read more from the original source:
Does the Government have the power to control human behaviour based on public health? COVID-19 and Government Power - Lexology