‘Business as (un)usual’: are you prepared for lock down on short notice?

By Alison Choy Flannigan

The COVID-19 pandemic is a rapidly evolving and escalating situation. We are in unprecedented times. With COVID 19 escalating, restrictions are changing day by day.  We recommend that you keep up to date with the Government websites.

The Commonwealth and State/Territories have very broad powers under the Biosecurity Act 2015 (Cth) (Biosecurity Act) and public health legislation in each State and Territory, including:

• the Public Health Act 2010 (NSW),
• the Public Health and Wellbeing Act 2008 (Vic)
• the Public Health Act 2005 (Qld)
• the Emergency Management Act 2005 (WA) and Public Health Act 2016 (WA).

The Biosecurity Act authorises activities used to prevent the introduction and spread of target diseases into Australia.

On 15 March 2020, Prime Minister Scott Morrison announced that all people entering into Australia must self-isolate for a period of 14 days and avoid non-essential mass gatherings of more than 500.

On 18 March 2020, Prime Minister Scott Morrison announced a ban on non-essential gatherings of 100 or more people indoors.

Schools, universities and child care facilities are currently exempt, as are shops and health services and public transport.

On 18 March 2020, a ‘human biosecurity emergency’ was declared under the Biosecurity Act.  This gives unprecedented powers to the Commonwealth government.  Section 478 states as follows:

478  Health Minister may give directions during human biosecurity emergency period

             (1)  During a human biosecurity emergency period, the Health Minister may give any direction, to any person, that the Health Minister is satisfied is necessary:

                     (a)  to prevent or control:

                              (i)  the entry of the declaration listed human disease into Australian territory or a part of Australian territory; or

                             (ii)  the emergence, establishment or spread of the declaration listed human disease in Australian territory or a part of Australian territory; or

                     (b)  to prevent or control the spread of the declaration listed human disease to another country; or

                     (c)  if a recommendation has been made to the Health Minister by the World Health Organization under Part III of the International Health Regulations in relation to the declaration listed human disease—to give effect to the recommendation.

Note 1:       A person who fails to comply with a direction given under this subsection may commit an offence (see section 479).

Note 2:       See also section 572 (general provisions relating to directions).

             (2)  Without limiting subsection (1), the directions that the Health Minister may give under that subsection include the following:

                     (a)  a direction to a person who is in a position to close premises, or prevent access to premises, to do so;

                     (b)  a direction for the purposes of giving effect to or enforcing a requirement determined under section 477;

                     (c)  if a recommendation has been made as referred to in paragraph (1)(c)—a direction for the purposes of giving effect to the recommendation.

             (3)  Before giving a direction under subsection (1), the Health Minister must be satisfied of all of the following:

                     (a)  that the direction is likely to be effective in, or to contribute to, achieving the purpose for which it is to be given;

                     (b)  that the direction is appropriate and adapted to achieve the purpose for which it is to be given;

                     (c)  that the direction is no more restrictive or intrusive than is required in the circumstances;

                     (d)  if the direction is to apply during a period—that the period is only as long as is necessary.

             (4)  A direction may be given under subsection (1) despite any provision of any other Australian law.

             (5)  A direction must not be given under subsection (1) to an officer or employee of a State, Territory or State or Territory body unless the direction is in accordance with an agreement between the Commonwealth and the State, Territory or body.

             (6)  A direction given under subsection (1) must not require an individual to be subject to a biosecurity measure of a kind set out in Subdivision B of Division 3 of Part 3 of Chapter 2.

Note:          Subdivision B of Division 3 of Part 3 of Chapter 2 sets out the biosecurity measures that may be included in a human biosecurity control order.

When direction ceases to have effect

             (7)  A direction given under subsection (1) ceases to have effect at the end of the human biosecurity emergency period, unless it is revoked earlier.

479  Person must comply with emergency requirements and directions

             (1)  A person must comply with a requirement determined under subsection 477(1) that applies to the person.

             (2)  A person must comply with a direction given under subsection 478(1) that applies to the person.

Fault based offences

             (3)  A person commits an offence if:

                     (a)  a requirement determined under subsection 477(1) applies to the person; and

                     (b)  the person engages in conduct; and

                     (c)  the conduct contravenes the requirement.

Penalty:  Imprisonment for 5 years or 300 penalty units, or both.

             (4)  A person commits an offence if:

                     (a)  a direction given under subsection 478(1) applies to the person; and

                     (b)  the person engages in conduct; and

                     (c)  the conduct contravenes the direction.

Penalty for contravention of this subsection:  Imprisonment for 5 years or 300 penalty units ($63,000), or both. I penalty unit = $210.

On 18 March 2020 the Prime Minister announced further restrictions including cancelling ANZAC Day ceremonies and events and restrictions for visiting aged care facilities – limit to two immediate society supports (family members, close friends) or professional service or advocacy at one time per day, visits outdoors and not in communal areas, no large group visits or social activities, no school groups, children under 16 years or less only by exception, 1.5 m social distancing, phone or video calls must be accessible to residents.

There are numerous pieces of federal and state legislation that will govern this new mandate. While the Biosecurity Act grants broad ranging powers, public health legislation varies slightly between the states and territories and depends on whether a public health emergency has been declared.  Further the orders made under this legislation vary slightly from State to State.

For example, section 7 of the NSW Public Health Act states that in a state of emergency, the Minister:

(a)  may take such action, and

(b)  may by order give such directions,

as the Minister considers necessary to deal with the risk and its possible consequences.

Examples include an order to declare any part of the State to be a public health risk area and, in that event, may contain such directions as the Minister considers necessary: -

(a)  to reduce or remove any risk to public health in the area, and

(b)  to segregate or isolate inhabitants of the area, and

(c)  to prevent, or conditionally permit, access to the area.

The details are in the orders

Quarantine

For example: the NSW Government has passed the Public Health (COVID-19 Quarantine) Order 2020 under the Public Health Act 2010 (NSW), section 7

The order commenced on 17 March 2020 (ie one second after midnight 16 March 2020) and currently extends to 15 June 2020.

The Minister directs that a person who arrives in NSW and who has been 14 days immediately before that arrival, been in a country other than Australia must do the following:

• Travel from the point of arrival in NSW to premises suitable for the person to reside in during the quarantine period;
• Except in exceptional circumstances, reside in the premises during the quarantine period;
• Not leave the premises during the quarantine period except for the purposes of obtaining medical care or medical supplies, or because of an emergency or in circumstances where the person is able to avoid close contact with other persons;
• Not permit any other person to enter the premises during the quarantine period unless the other person usually resides at the premises or is also complying with the direction or enters the premises for medical purposes or because of an emergency and
• Otherwise complies with the NSW Health Self Isolation Guidelines during the quarantine period.

The order allows conduct inconsistent with the above if there is a reasonable excuse.

Penalty: For an individual, six months imprisonment or a fine of up to 100 penalty units ($11,000) (or both) plus a further 50 penalty units ($5,500) fine each day if the offence continues. Corporations that fail to comply are liable to a fine of 500 penalty units ($55,000) and 250 penalty units ($27,500) each day the offence continues.  In NSW a penalty unit = $110

Mass gatherings

In relation to mass gatherings, the Victorian Government has passed the: (Direction from Chief Health Officer in accordance with emergency powers arising from declared state of emergency – Public Health and Wellbeing Act 2008 (ViC)

Under section 200:

1. A person who owns, controls or operates premises in the State of Victoria must not allow a mass gathering to occur on the premises between noon on 16 March 2020 and midnight on 13 April 2020.
2. A person must not organise a mass gathering on premises in the State of Victoria between noon on 16 March 2020 and midnight on 13 April 2020.
3. A person must not attend a mass gathering on premises in the State of Victoria between noon on 16 March 2020 and midnight on 13 April 2020.

A mass gathering is any gathering of five hundred (500) [and now100 for indoors] or more persons in a single undivided space at the same time, whether in an indoor or outdoor space, but does not include a gathering a number of matters including: an office building, factory or construction site, public transport, health or medical facility, disability or aged care facility, shopping centre.

Penalty: Natural persons 120 units (approx. $20,000); Corporation 600 penalty units (approx. $100,000) a penalty unit in Victoria = $165.22

It is important to keep updated on Government announcements.

Useful government websites

Useful government websites include:

The Healthdirect COVID 19 website at: https://www.healthdirect.gov.au/coronavirus

We are also posting relevant articles and recordings of relevant webinars on our website COVID Hub at: https://hallandwilcox.com.au/our-recent-thinking-on-covid-19/

Our next webinar on Houston, we have a problem - What to do about COVID for health, aged care, disability providers is on 16 April 2020 from 5pm.  Register at:  https://hallandwilcox.com.au/our-thinking/events/

This article is up to date as at 19 March 2020.  If you wish to keep up to date more regularly please follow me on Linked-in here.