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M. Kirby (1996)Human rights and the HIV paradox
The Lancet, 348
(1999)The Centre for Comparative Constitutional Studies. Implementation Options for National Legislative Schemes
(1998)Forms of Public Health Law -A General Outline' in The Australian Institute of Health Law and Ethics (ed). Public Health Law in Australia -New Perspectives
McMillan, John (1998)Public Health Law in Australia – New Perspectives
In particular see Commonwealth Department of Health and Ageing
Australian Government Department of Health and Ageing Guidelines to Avian Influenza
In the 1980's and 1990's HIV/AIDS was the emerging infectious disease. In 2003–2004 we saw the emergence of SARS, Avian influenza and Anthrax in a man made form used for bioterrorism. Emergency powers legislation in Australia is a patchwork of Commonwealth quarantine laws and State and Territory based emergency powers in public health legislation. It is time for a review of such legislation and time for consideration of the efficacy of such legislation from a country wide perspective in an age when we have to consider the possibility of mass outbreaks of communicable diseases which ignore jurisdictional boundaries. The management of infectious diseases in an increasingly this approach is found in section 119 and 120 of the Vic- complex world of mass international travel, globalization torian Health Act 1958. These sections emphasize the need and terrorism heightens challenges for Federal, State and to protect the privacy of the infected individual and to Territory Governments in ensuring that Australia's laws undertake a staged response which is proportional to the are sufficiently flexible to address the types of problems risk presented by the infected individual. The legislation that may emerge. has been very effective with HIV and has been praised for its progressive approach . In the 1980's and 1990's HIV/AIDS was the latest "emerg- ing infectious disease". Considerable thought was put In 2003 the community has been faced with the emer- into the legislative response by a number of Australian gence of two new infectious diseases, SARS and Anthrax. jurisdictions. Particular attention had to be given to the Whilst there were no cases of either disease in Australia, unique features of the disease such as the method of trans- the threat of a possible outbreak had to be acknowledged mission, the kinds of people who were at risk, and the and a response planned. Anthrax is not a new infectious protections needed by the community and the infected disease. Humans can become infected with anthrax by population to best manage the care of those infected and handling products from infected animals or by breathing to minimize new infections. Health workers and research- in anthrax spores from infected animal products (like ers began to find that "the most effective strategies that we wool, for example). People also can become infected with have so far found to help promote reduction of the spread gastrointestinal anthrax by eating undercooked meat from of HIV involve the adoption of laws and policies which infected animals. However, its manufacture and use as a protect the rights of people most at risk of infection" . weapon for bioterrorism forces us to rethink its manage- A good example of a legislative response which adopts ment in a new context. Page 1 of 4 (page number not for citation purposes) Australia and New Zealand Health Policy 2004, 1:7 http://www.anzhealthpolicy.com/content/1/1/7 These two infectious diseases have very different features of legislative authority in the fields of public health is con- from HIV which spreads only via transmission of infected cerned".  bodily fluids such as blood or semen. SARS, by contrast is transmitted via droplets from infected cases which, as a The quarantine power would be the most likely candidate result of coughing, carry the virus to close contacts  for a head of power on which to base development of Thus, the infection profile of SARS requires planning for commonwealth laws for the management of public health the possible overrun of Intensive Care Units and the likely emergencies. Another possibility may be the external infection of a number of ICU staff affecting both morale affairs power, if there was a relevant treaty or international and capacity to cope. Anthrax raised different problems. agreement which could be given effect to in domestic law. These include the possible investigation of terrorist sus- However the legislation would have to be limited to laws pects alongside investigation of the outbreak of the infec- giving effect to the treaty. tious disease. Difficulties are also raised by likelihood of public panic, and the flooding of public health officials States and territories have a range of emergency powers with reports of suspicious white powder. available to them in their existing public health legisla- tion. Some are relatively old. For example, the Health Act In early 2004 the media reported the spread of avian influ- 1911 (WA), Public Health Act 1952 (NT) based on an 1898 enza across South East Asia. This disease has different fea- Ordinance (Both these Acts are currently under review). tures from HIV/AIDS and SARS and an approach to an Health emergency powers vary from one jurisdiction to Australian outbreak would also be different. The main dif- another, but include powers to support disease surveil- ference is in the source of transmission of the virus, that is, lance, contact tracing and orders to restrict behavior or from infected birds to humans. There is very little differ- movement of individuals with an infectious disease in cer- ence [from ordinary influenza] in the symptoms (though tain circumstances. There are also powers to recall food, these may vary in severity) or treatment of the virus  It search premises and seize property, close buildings and a is too early to predict whether this may be the next range of other substantial and intrusive powers. "emerging infectious disease", but its current spread has given rise to concern about such a possibility  It is suggested that it is time to consider whether state and territory public health legislation contains sufficient Australia is a federal system. There are two parallel sets of measures to manage the outbreak of an infectious disease laws in operation. The Commonwealth Constitution sets in a modern environment which includes mass travel, out the legislative powers of the Commonwealth. Specific swift spread of infection and additional complexity raised powers are listed in the Commonwealth constitution but by fears of bioterrorism. State constitutions have broad powers covering matters such as peace, order and good governance. As the Com- Currently, in a public health emergency caused by the monwealth has no specific power to legislate with respect spread of an emerging infectious disease, Australia could to health, other than the quarantine power, national leg- need to rely on a patchwork of legislative measures to islative schemes in public health which rely upon a coop- assist it to cope. Commonwealth quarantine laws and erative approach from all States and Territories are State and Territory powers in public health legislation cumbersome and difficult. may all be needed to address the problem. If an outbreak occurred on a border, or in some area where jurisdiction Without a specific head of power, the Commonwealth has may be in doubt such as airspace or offshore and a state or limited ability to legislate with respect to health. "That is, territory response was required in addition to any quaran- the legislative powers of the Commonwealth are specified tine measures, there could be confusion over jurisdiction in the Constitution and do not include expressly most of for the application of State and Territory powers. State and the activities that together comprise the field of public Territory public health acts do not adequately provide for health" For this reason, there are no Commonwealth interjurisdictional communication and cooperation. emergency health powers except quarantine powers. There could also be difficulties if an infectious disease Quarantine powers are currently restricted to isolation at caused overseas deaths of people from more than one the border of the country of people, plants, and animals State or Territory in circumstances where an Australian to prevent the spread of disease. There is a real possibility coronial investigation was considered desirable. In such a that quarantine laws could have a broader scope. It situation, the jurisdiction of more than one Australian depends on how widely the High Court would interpret coroner would be triggered. Several State and Territory section 51(x) of the Commonwealth Constitution. A coronial laws could apply and there could be different quarantine law could override state laws as long as it inquests under different laws undertaken by different cor- remained a law "with respect to quarantine". However, oners into the same incident. "the power is potentially a colossus so far as the expansion Page 2 of 4 (page number not for citation purposes) Australia and New Zealand Health Policy 2004, 1:7 http://www.anzhealthpolicy.com/content/1/1/7 It is suggested that it is time to look at the efficiency of the A review of the efficacy of how these laws work together to emergency powers laws of Australia as a whole: to map the protect the public health of all Australians should be laws in each jurisdiction and the Commonwealth quaran- undertaken. It has been possible to overcome the hango- tine laws and to consider their effectiveness in the face of vers of federation for the betterment of all Australians in the outbreak of a fast moving, easily spread infectious dis- relation to corporations law. When doubts were recently ease. The efficacy of Australia's laws should also be con- raised about the constitutional basis of the corporations sidered in relation to bioterrorism. While there were no law scheme, the States and Territories were able to coop- infections from anthrax in 2003 despite a great deal of erate and refer the necessary powers to the Common- media coverage and infections and deaths in the US, a wealth to provide certainty about the laws which govern responsible legislature ought to acknowledge the possibil- our corporations. Is our public health any less important ity and ensure that the law is ready to support a swift and than governance of our corporations? Could we cooperate effective response. to give ourselves certainty, flexibility and a consistent approach which protects the rights of those subject to It is not enough to consider whether the individual pieces some very broad powers? of legislation are up to the task of managing outbreaks of newly emerging infectious diseases. Indeed many of the The States and Territories are generally reluctant to refer jurisdictions are currently reviewing their public health powers to the Commonwealth. It may be time to seriously legislation and will no doubt give proper consideration to discuss referral of powers in the context of health emer- this issue as part of the review. But who is thinking about gency powers. At the very least, it is time that the Com- how the legislation of all jurisdictions and the Common- monwealth, States and Territories recognised the need for wealth quarantine fits together? What powers enable com- the laws to work as a set of laws to protect the whole coun- munication and cooperation between jurisdictions about try, not simply individual laws to protect individual juris- the outbreak of infectious disease? What kind of opportu- dictions. nity is there for a coordinated response? Can public health orders made in one jurisdiction travel to another jurisdic- There has been work done internationally in this area. A tion when the infected individual travels? What arrange- model State Emergency Health Powers Act has been devel- ments can be made if an outbreak occurs on or close to a oped in the US in 2001  In the preamble to this Act a interstate border? What if there is an outbreak on a bus rationale for its development is set out: "In the wake of the carrying passengers from Victoria, through South Aus- tragic events of September 11, 2001, our nation realizes tralia to the Northern Territory? that the Government's foremost responsibility is to pro- tect the health, safety and wellbeing of its citizens. New It is encouraging to note that, even without specific legis- and emerging dangers including emergent and resurgent lation, there has been a mechanism to achieve communi- infectious diseases and incidents of civilian mass casual- cation and cooperation between jurisdictions through the ties – pose serious and immediate threats to the popula- Communicable Disease Network of Australia (CDNA). tion. A renewed focus on the prevention, detection, This Network has in fact been quite successful in fostering management and containment of public health emergen- regular communication between the Communicable Dis- cies is thus called for." The US, like Australia, is a Federal ease Units across the country and has been involved in system. The model was intended to be taken up by those coordinated actions during a number of multistate out- US states which wished to do so. To date, it has been breaks. passed in over half the US states. This bill would be an excellent starting point for development of an Australian Despite the existence of this network and other good model. There are a number of legislative mechanisms working relationships between government officials and which could be used to support a nationally uniform various agencies in different jurisdictions, a serious out- approach to health emergency powers legislation in Aus- break of communicable disease would require the exist- tralia. ence of legislative powers. Public health emergencies generate confusion, even panic. Clarity of powers and the The development and adoption of the model food legisla- way those powers interact with each other would be cru- tion provides a useful model of a cooperative uniform cial in an emergency. It became apparent after the Bali approach. A model act was developed in consultation tragedy in 2002 that coroner's jurisdiction was triggered with all jurisdictions. It covered areas agreed to be core differently in different jurisdictions and some acts did not areas of the Act which ought to be the subject of a national support communication and cooperation when inquests approach and other provisions which were considered to might be needed for deaths of people ordinarily resident be administrative and were to be adopted at the discretion in several jurisdictions. The time to find the shortcomings of each jurisdiction. An intergovernmental agreement was in the legislation is well before the crisis. signed as a mechanism to protect the uniformity of the Page 3 of 4 (page number not for citation purposes) Australia and New Zealand Health Policy 2004, 1:7 http://www.anzhealthpolicy.com/content/1/1/7 legislation. The agreement sets up a Ministerial Council, supported by a Food Regulation Standing Committee. The Council has responsibility for deciding on proposals to amend the model  If a decision is made in favor of amendment, States and Territories will use their best endeavors to submit to their respective Parliaments, legis- lation which gives effect to the amendment. The law is an important tool in supporting the manage- ment of the outbreak of infectious diseases. The existence of our Federal system has meant that we have a different approach in each State and Territory together with Com- monwealth control of quarantine. Newly emerging infec- tious diseases creating real threats to public health in an era of easy mass travel, and the present threat of bioterror- ism mean that it is time Australia examined all laws to contain and manage infectious disease outbreak. The laws should be examined both for their effectiveness in the areas they cover, and as part of a whole which ought ena- ble a response which protects the health of all Australians, and crosses borders as easily as SARS or avian influenza. References 1. Kirby , Justice Michael : Human Rights and the HIV Paradox. Lancet 1996, 348:1217-8. 2. Reynolds , Chris : 'Forms of Public Health Law – A General Outline' in The Australian Institute of Health Law and Ethics (ed). Public Health Law in Australia – New Perspectives 1998. 3. Australian Government Department of Health and Ageing Guidelines on SARS [http://www.health.gov.au/sars/index.htm]. 4. Australian Government Department of Health and Ageing Guidelines to Avian Influenza [http://www.health.vic.gov.au/avian/ index.htm]. 5. A number of websites provide information updates on the spread of the disease. . In particular see Commonwealth Department of Health and Ageing http://www.health.gov.au/ avian_influenza/index.htm, World Health Organization http:// www.who.int/csr/disease/avian_influenza/en/, Centres for Disease Control http://www.cdc.gov/flu/, Department of Foreign Affairs and Trade http://www.dfat.gov.au/ 6. McMillan , John : 'The Constitutional Power of the Common- wealth in Public Health' in The Australian Institute of Health Law and Ethics (ed):. Public Health Law in Australia – New Perspec- tives 1998. 7. Model State Emergency Health Powers Act (USA) [http:// www.publichealthlaw.net/MSEHPA/MSEHPA2.pdf] 8. Council of Australian Governments (COAG) Food Regula- tion Agreement [http://www.coag.gov.au/guide_agreements.htm] 9. The Centre for Comparative Constitutional Studies. Imple- mentation Options for National Legislative Schemes 1999. 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Australia and New Zealand Health Policy – Springer Journals
Published: Nov 19, 2004
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