Kerry O'Brien (Tasmania, Australian Labor Party, Shadow Minister for Primary Industries, Fisheries and Forestry) Share this | Link to this | Hansard source

Before we come to the amendments, I want to ask the Minister representing the Minister for Agriculture, Fisheries and Forestry to respond to a question I referred to earlier to which he has not responded. Minister, has there been a tightening of the arrangements for handlers coming and going from the Eastern Creek facility, particularly to the local pub, since the outbreak of equine influenza? The handlers at Eastern Creek have been leaving and re-entering the facility, for the purposes of going to lunch at the local pub, without any appropriate quarantine arrangements. Those arrangements have been tightened since the outbreak, to the extent that those handlers are now required to shower and change both on exiting and re-entering the quarantine facility at Eastern Creek. I would appreciate it if the minister could respond to that question as an initial matter in relation to the committee stage of this bill.

Eric Abetz (Tasmania, Liberal Party, Minister for Fisheries, Forestry and Conservation) Share this | Link to this | Hansard source

The advice I have is that no specific changes have been made, but of course vigilance is always vital in this area. Undoubtedly, given the circumstances we face, the protocols in place are being followed very strenuously. But at this stage my advice is that no specific changes were made, other than that additional security and quarantine measures have been put in place at quarantine stations. These measures include a requirement for all persons entering the horse quarantine area to undertake disinfection of their footwear with Virkon, to shower on arrival at the station, to shower when leaving and to wear AQIS supplied protective clothing at all times while in the station.

Kerry O'Brien (Tasmania, Australian Labor Party, Shadow Minister for Primary Industries, Fisheries and Forestry) Share this | Link to this | Hansard source

Should I take it that those measures did not apply prior to this outbreak?

Eric Abetz (Tasmania, Liberal Party, Minister for Fisheries, Forestry and Conservation) Share this | Link to this | Hansard source

The advice is that these were changes made since 24 August. As I read it, that would be the additional security and quarantine measures that were implemented as a result of this particular outbreak. I am not sure of the extent to which those practices were undertaken before 24 August and whether that was part of the protocol. As to whether things may have been somewhat more lax prior to 24 August, I am unable to assist in that regard.

Kerry O'Brien (Tasmania, Australian Labor Party, Shadow Minister for Primary Industries, Fisheries and Forestry) Share this | Link to this | Hansard source

Is the minister aware of the article issued by AAP on 30 August that I referred to in my contribution in the second reading debate? It is about a former groom who says he carried out work at the Eastern Creek facility in 2001 and 2003. He revealed that he and other stallion grooms were allowed to leave Eastern Creek on numerous occasions, without changing clothes or scrubbing down, to attend race meetings, play golf and eat and drink at local hotels and restaurants, to attend racetracks and to attend pavilions run by thoroughbred studs. There were allegations about trucks unloading horses at the facility and then leaving without washing down. Is the minister or the department aware of those allegations, and what do you say to them?

Eric Abetz (Tasmania, Liberal Party, Minister for Fisheries, Forestry and Conservation) Share this | Link to this | Hansard source

I personally am not aware of the article, but the department is. We as a government treat very seriously those particular allegations and indeed all other allegations that people might have. That is why we have this legislation before us this evening. We want the Callinan inquiry to get underway ASAP. As soon as it does get underway, people like this groom will be able to provide evidence to the inquiry, and the veracity and details of those allegations can be tested. I would encourage anybody with such stories and such concerns to come forward and provide evidence to Mr Callinan’s inquiry so that we can get a full picture. We as a government look forward to the advice and suggestions of the inquiry as to what changes ought to be made.

Kerry O'Brien (Tasmania, Australian Labor Party, Shadow Minister for Primary Industries, Fisheries and Forestry) Share this | Link to this | Hansard source

If a former contractor such as this person were to come forward and reveal breaches in the quarantine arrangements at Eastern Creek, what would be the personal consequences for such a potential witness? Are there any potential penalties which might apply to a person who reveals deficiencies in a system in which they have participated? If that is the case, is that a barrier to getting all the necessary evidence that we might obtain in the conduct of a thorough, rigorous and transparent inquiry?

Eric Abetz (Tasmania, Liberal Party, Minister for Fisheries, Forestry and Conservation) Share this | Link to this | Hansard source

Witnesses at the commission of inquiry will have the same protection as witnesses before a royal commission. The Royal Commissions Act protections are based on the immunity provided to justices presiding and witnesses and legal representatives appearing before the High Court of Australia. One of the main protections provided to witnesses is in relation to defamation. The protection extended to High Court justices is based under the general law rather than legislation and, basically speaking, protects them from civil liability in relation to anything they say or do in their judicial capacity. Having read that, I must say that I do not think that is necessarily responsive to Senator O’Brien.

This is always one of the difficult areas and, if I understand Senator O’Brien’s question correctly, it is really a question of a witness potentially self-incriminating and how one protects those people. That is always a difficult situation. The royal commission has the power of subpoena, so, if information is provided, witnesses can be subpoenaed and required to give evidence. Where people have particular evidence that they are reluctant to give in circumstances where they might self-incriminate, undoubtedly they would need to seek legal advice and approach the commission as to the appropriate way to handle that. I am not sure what the exact procedure would be, but hopefully one of the advisers might be able to assist at a later stage in relation to that. It is, I might say, a very fair question that is being asked by Senator O’Brien. We will try and find that out.

Kerry O'Brien (Tasmania, Australian Labor Party, Shadow Minister for Primary Industries, Fisheries and Forestry) Share this | Link to this | Hansard source

I appreciate the undertaking to try and find that out so that I can be clear as to how I pursue this. I am concerned that there may have been protocols more observed in the breach, particularly by contractors who have from time to time attended and worked at the facility as handlers for particular imported horses, probably thoroughbred stallions—they seem to be the most valuable commodity in the context of this inquiry that would require handlers to attend. I really do think that if there is a barrier to those individuals coming forward and giving their evidence then we need to understand how those barriers might be overcome if that were to prejudice the obtaining of evidence which would indicate what the culture was, particularly at Eastern Creek during all relevant times since, let us say, the Olympics.

I think the Olympics was the last occasion on which there was a major change in horse importation protocols. Minister, you will be aware that in question time you were under the misapprehension that I was asking about foot-and-mouth disease concerns that were raised. They were raised before 2000 in relation to horses being imported for the equestrian events of the Olympics, and there was a debate as to whether horses could carry foot-and-mouth, there having been considerations about foot-and-mouth coming from Europe in particular but also from other parts of the world where foot-and-mouth disease was endemic. Of course, changed protocols and the more frequent importation of horses, both breeding and racing horses, are circumstances which would have exerted some pressure on our import protocols. And, of course, it is very important that any inquiry looks at the development of those protocols, maybe from before the Olympics but certainly since that time.

So, whilst that other matter is being considered, I wonder if the minister can advise us whether the terms of reference in the legislation require Mr Callinan to have regard to matters which go to the protocols that underpin the rules that apply to the importation of, let us say, horses. I think there are other animals that are affected by the same protocols, but let us say horses for the sake of the debate. Is the minister able to assure the Senate that there is no impediment in those terms of reference as contained in the bill which would prevent Mr Callinan from taking evidence as to the history of the protocols and the involvement of ministers in the development of policy underpinning those protocols?

Eric Abetz (Tasmania, Liberal Party, Minister for Fisheries, Forestry and Conservation) Share this | Link to this | Hansard source

In relation to the letter that was referred to, we may have been at cross-purposes. I was referring to one letter, and clearly Senator O’Brien was referring to another in relation to the exchange at question time a few days ago. In relation to the powers that the royal commissioner may have, generally I can indicate to the Senate that Mr Callinan has indicated that, in the event that he thinks the powers are not broad enough, he would not be constrained in any way, shape or form in approaching the minister to extend the powers. The minister has indicated that he would be willing to grant that. But in relation to the specific matter, if I can refer the honourable Senator’s attention to the bill, proposed section 66AY(1) says the terms of reference are to:

(a)

conduct a Commission of inquiry into matters specified in the instrument of appointment relating to all or any of the following:

(i)

the outbreak of equine influenza in Australia in 2007;

(ii)

quarantine requirements and practices relating to the outbreak ...

That seems quite specific to the matter raised by Senator O’Brien, but in any event we have included:

(iii)

any matters incidental to the matters referred to in subparagraphs (i) and (ii) ...

Then there is the report to the minister. I think the terms of reference are both specific in relation to the particular issue raised by Senator O’Brien and also very wide and broad inasmuch as the commissioner is given power to inquire into matters incidental to those first two paragraphs.

Kerry O'Brien (Tasmania, Australian Labor Party, Shadow Minister for Primary Industries, Fisheries and Forestry) Share this | Link to this | Hansard source

Can the minister explain why, in the preamble in 66AY, the minister is able to authorise a person, in this case Mr Callinan, to inquire into all or any of those matters that he referred to? What is the relevance? It is effectively at the discretion of the minister to decide. After the parliament purports to set the terms of reference, the minister might constrain it to something less than the provisions in the bill. What is the purpose of that provision?

Eric Abetz (Tasmania, Liberal Party, Minister for Fisheries, Forestry and Conservation) Share this | Link to this | Hansard source

As I understand it, it is common legal phraseology to cover the field to allow all or any matter to be inquired into. The legislation says:

(1)

The Minister may, in writing, appoint a person to:

(a)

conduct a Commission of inquiry into matters specified in the instrument of appointment relating to all or any of the following ...

And then we have the terms of reference. It is quite clear from the minister’s public statements that he is very much interested in all matters being inquired into. Mr Callinan has indicated that, in the event that the terms of reference are not wide enough or broad enough and Mr Callinan is somehow constrained in his inquiry as a result of some limitation in the terms of reference, he will ask the minister to broaden the terms of reference. The minister has indicated that he will very willingly broaden the terms of reference to ensure that any avenue of inquiry that Mr Callinan considers to be important can in fact be pursued.

Kerry O'Brien (Tasmania, Australian Labor Party, Shadow Minister for Primary Industries, Fisheries and Forestry) Share this | Link to this | Hansard source

Do the terms which constrain those terms of reference that the minister can establish for Mr Callinan omit the reference to the spread of equine influenza for any purpose? Or should we understand the term ‘outbreak’ to refer to the discovery of the disease and its occurrence in a variety of different places? My question is: do these terms constrain the inquiry to what happened at Eastern Creek, or is Mr Callinan to be equipped with terms that will allow him to trace the spread of the disease upon establishment at Eastern Creek? We know, and the minister has said—and I assume he is being accurate and truthful—that the disease was discovered at Eastern Creek on or around 24 August. The purpose of my question is to understand why there is no reference to the spread of the disease in the terms of reference. Or should we understand that the term ‘outbreak’ takes us from the point of it first being observed to where it subsequently occurred in other parts of the states of New South Wales and Queensland at this stage?

Eric Abetz (Tasmania, Liberal Party, Minister for Fisheries, Forestry and Conservation) Share this | Link to this | Hansard source

The terms of reference do refer to the outbreak of equine influenza, not in Eastern Creek but in Australia. That would be interpreted as referring to the outbreak anywhere in Australia but, in the event that somebody were to seek to argue that the outbreak actually occurred in Eastern Creek and therefore the inquiry should be limited only to Eastern Creek, I dare say Mr Callinan’s judicial mind would allow him to have reference to (iii), which refers him to any matters ‘incidental to’. I think everybody would agree that, as a matter of construction, if somebody were to seek to say that the outbreak can only have occurred in one place, clearly a matter incidental to the initial outbreak is its spread through to other parts of Australia. Therefore, Mr Callinan would be clothed with full authority, on the current construction of the terms of reference, to make the sort of inquiry that Senator O’Brien refers to. Once again, having said that, in the event that some argument is to be brought forward or sought to be maintained to restrict Mr Callinan’s inquiry, then we do have the assurances of both Mr Callinan and Minister McGauran that I have referred to previously, which indicate they would both pursue as broad a reference as possible to ensure that all matters are appropriately inquired into.

Kerry O'Brien (Tasmania, Australian Labor Party, Shadow Minister for Primary Industries, Fisheries and Forestry) Share this | Link to this | Hansard source

I wonder if the minister has an answer to my first question, so I will raise that now. Whilst I am on my feet, I will raise another issue that arises and that is that, in the conduct of the commission, as I understand it, the existing powers under quarantine legislation with regard to search have been retained, rather than those from the royal commission. As I understand it, inquiries are being conducted by officers of the department, AQIS or both into the circumstances around the outbreak or outbreak and spread—depending on your preference for how it should be expressed—and those officers’ inquiries will be able to be included in the evidence of Mr Callinan’s inquiry, without any other special provision, if this legislation is passed. Is the legislation sufficient to allow Mr Callinan to conduct separate and independent inquiries—that is, independent of officers of the department, AQIS et cetera—to be certain that the evidence is being pursued without fear or favour in relation to what might have been a performance, or lack of it, by departmental officers or the agency or whatever? There are two questions there.

Eric Abetz (Tasmania, Liberal Party, Minister for Fisheries, Forestry and Conservation) Share this | Link to this | Hansard source

In relation to the latter—we are still getting some information in relation to the first matter—there have been some questions about why this has not been dealt with completely under the Royal Commissions Act. The aspects of the royal commission legislation which will apply will provide all powers and protections necessary to conduct the inquiry, and so Mr Callinan will have power to hold public hearings and compel the production of witnesses. However, it is also important for a range of existing powers in the Quarantine Act to be accessible to the inquiry. Right on point, if I understand Senator O’Brien’s question correctly, for example, there is provision for independent investigators to be empowered to utilise the quarantine search powers that were specifically created to deal with quarantine offences and that are already contained in the Quarantine Act. Mr Callinan will be able to avail himself of the benefits of those independent investigators to assist the inquiry.

Christine Milne (Tasmania, Australian Greens) Share this | Link to this | Hansard source

I want to get on the record from the minister that the nature of the terms of reference, when read in a strictly literal sense, do not refer to the matter that I raised, which is essentially about what happened at the Japanese end before the horses left Japan and came to Australia. In the briefing I had in relation to the bill, it was explained that the terms of reference, particularly in relation to matters which were incidental to the matters referred to in the first paragraph regarding the outbreak and the quarantine requirements, would include pre arrival as well as post arrival. I notice that somewhere in the bill—I cannot find the exact place now—it says that there can be hearings either inside or outside Australia.

I wanted to get on the record from the minister, because it is not stated in the second reading speech, that this inquiry into the outbreak of equine influenza in Australia will not just be confined to circumstances, post arrival, of any horses to Eastern Creek or anywhere else and that it will allow for a full investigation of all the circumstances that led to the outbreak, especially since we know that the horses arrived at Eastern Creek on 8 August and that the equine influenza was established by about 24 August—but the Japanese had known, as I said, as early as 15 August that there were horses in Japan with the disease. We know those horses were quarantined for four weeks. I think it would be important that the commissioner have the power he needs to have a really good look at the circumstances before there was any transhipment, as well. I just want the minister to put on the record that those matters are capable of being investigated under the terms of reference as stated.

Eric Abetz (Tasmania, Liberal Party, Minister for Fisheries, Forestry and Conservation) Share this | Link to this | Hansard source

Yes, they are. I want to sound a note of caution. I do not want to be too petty in this, but Senator Milne said ‘We know.’ I suppose it might be a fair assumption, a fair hunch, but until Mr Callinan reports I do not want to be trapped or seen as affirming any suggestion about where the equine influenza may have originated from et cetera. That is simply from an overabundance of caution.

Having said that, the Royal Commissions Act, at sections 7A and 7B, clothes royal commissioners or people that are given those powers to undertake inquiries overseas and outside of Australia. So Mr Callinan would have those powers courtesy of the reference to that legislation. I also draw Senator Milne’s attention to proposed section 66AY(1)(a)(ii), which refers to quarantine requirements and practices relating to the outbreak. As I understand it, there is a quarantine protocol which requires testing in a quarantine situation in the country of origin, other than New Zealand, so that would definitely be a requirement in Japan. Therefore, all the matters that Senator Milne has referred to would definitely be within the purview of Mr Callinan’s inquiry.

Christine Milne (Tasmania, Australian Greens) Share this | Link to this | Hansard source

Whilst I take the minister’s point that the disease came from Japan, I did not actually say that. I said that what we knew was that on 15 August 200 vets were despatched in Japan to look at horses there for suspicion of influenza. That was reported in the Japanese press. On Thursday, 16 August, the Japanese racing authority officials held a news conference to announce 20 thoroughbreds were infected with equine influenza. So when I say we knew, it was certainly reported in the Japanese press that there had been an outbreak there. But I also take the point that it is yet to be proven that the disease outbreak at Eastern Creek originated in Japan.

Kerry O'Brien (Tasmania, Australian Labor Party, Shadow Minister for Primary Industries, Fisheries and Forestry) Share this | Link to this | Hansard source

Another question I have is a matter I raised in my second reading contribution and in the committee stage. It concerns the impact of the government’s policy settings on quarantine protocols, practices and arrangements. Can the minister assure the Senate that the terms of reference for Mr Callinan’s inquiry will be wide enough to enable Mr Callinan, and indeed those who seek to put submissions before the inquiry, to canvass the minister’s role in any policy settings, practices or procedures relevant to the equine influenza outbreak and the protocol surrounding it?

Eric Abetz (Tasmania, Liberal Party, Minister for Fisheries, Forestry and Conservation) Share this | Link to this | Hansard source

I would have thought that the clause ‘any matter incidental’ would clearly capture the matters raised by Senator O’Brien. From the government’s point of view, these protocols have been in place for some time. Whether they are good enough or, indeed, whether they were breached are matters about which we will listen to the Callinan inquiry for any assistance. Having said that, as a government, we are anxious to make sure that we are as well informed as possible to ensure that such a breach is unlikely to occur again.

In relation to the question which Senator O’Brien has been very patient with me in obtaining an answer on, I now have the advice that there is no formal protection for people who may self-incriminate in giving evidence to a royal commission. That is a matter that undoubtedly the royal commissioner and counsel assisting would need to consider on a case-by-case basis. If someone is willing to come forward and say, ‘I’ve got some evidence that you may be interested in, but I need some protection against self-incrimination,’ I think that may be a matter, potentially, for the Director of Public Prosecutions to deal with. But, as I understand it, there is no blanket protection against people self-incriminating. Of course, if there were people who had done activities that might see them being prosecuted, they would run in and confess all, knowing that as a result of that they could not be prosecuted. That is one of those difficult situations, I agree. The advice I have is there is no formal protection for people who may self-incriminate.

Kerry O'Brien (Tasmania, Australian Labor Party, Shadow Minister for Primary Industries, Fisheries and Forestry) Share this | Link to this | Hansard source

That is a concern and it is perhaps an issue that ought to be considered. Let us go to the circumstances at Eastern Creek. At the start of the thoroughbred breeding season there is an influx of horses. Those horses are usually accompanied by contractors who are engaged sessionally for the period those horses are at Eastern Creek. They do not necessarily have an ongoing connection with or any special training in protocols, or perhaps even an understanding of why special protocols are needed. For this inquiry to completely understand what has occurred, I would suggest that those individuals should be able to give evidence. I regard those people as perhaps more the victims than the cause of the problem because of their circumstances, whether it be in relation to training or whatever else, or just existing within a culture at the facility. If they have no expectation that their evidence may lead to some prosecution for a breach of a rule that they may or may not be aware of, that is going to be an impediment to the inquiry. Is any consideration being given to equipping the royal commissioner with the power to pursue those sorts of indemnities in return for evidence?

Eric Abetz (Tasmania, Liberal Party, Minister for Fisheries, Forestry and Conservation) Share this | Link to this | Hansard source

I suppose how this inquiry unfolds will largely depend on the way it is conducted. As I understand it, Mr Callinan will hold an initial public hearing scoped the way that he intends to deal with the matter and then he will adjourn for a while. I also understand that people will be able to make submissions. I understand inquiries of this nature can also take evidence in private. I am not sure that that would necessarily assist in certain circumstances, but the general rules that apply to royal commissions and people self-incriminating would apply to this inquiry as well.

Kerry O'Brien (Tasmania, Australian Labor Party, Shadow Minister for Primary Industries, Fisheries and Forestry) Share this | Link to this | Hansard source

I take it from that contribution that no consideration has been given to that matter and the government does not intend to make any special arrangement for that circumstance. It may be because that is the precedent.

Progress reported.