Richard Colbeck (Tasmania, Liberal Party, Shadow Parliamentary Secretary for Health) Share this | Link to this | Hansard source

The Senate is considering the Quarantine Amendment (National Health Security) Bill 2008. This bill amends the Quarantine Act 1908 to implement certain requirements of the International Health Regulations, which entered into force in June last year and which were a landmark for the WHO and supporting member states, including Australia. I commend the work of the officers of the Department of Health and Ageing and the Department of Foreign Affairs and Trade who did so much to ensure that the International Health Regulations came into force. It is vital, given the increasing transience of people through air travel, that globalisation with regard to public health protective measures is understood and accepted.

The bill requires travellers who are subject to quarantine, or quarantine officers themselves, to submit themselves to vaccination or other preventative measurers, if this is necessary, for the prevention of the spread of quarantinable disease or if the vaccine or other prophylaxis is specified in the International Health Regulations. The bill also makes provisions for certain other changes to align the Quarantine Act with the International Health Regulations, and these are detailed in the minister’s second reading speech.

In the excellent Bills Digest prepared by the Parliamentary Library, there are two matters of concern which are raised, and I invite the Parliamentary Secretary to the Minister for Health and Ageing to respond to these points when she sums up the debate. The first matter of concern is that the bill does not amend the sections of the Quarantine Act which provide that people who refuse to be vaccinated or have other prophylaxes administered, say, for religious or medical reasons, are taken to be guilty of a strict liability offence punishable by 20 penalty points or $2,200.

In addition, there is no appeal process set out in relation to a decision taken to administer a vaccine or prophylaxis in the absence of consent. The explanatory memorandum to the bill says that a quarantine officer may require a person to be vaccinated in ‘extraordinary circumstances’, but that is not defined. The opposition appreciates that a vaccine would only be forcibly administered in a very extreme case, but it is unsettling for the appeals process not to be spelt out in such a case, however rare. It is also not clear how a medical practitioner would be protected if he or she was compelled to give a vaccination. I would like the parliamentary secretary to explain these points or, if she is unable to do that now, give an assurance to the Senate that a statement will be provided to explain what will occur in these circumstances and what guidance will be given for the exercise of discretion by both quarantine officers and medical practitioners.

Andrew Bartlett (Queensland, Australian Democrats) Share this | Link to this | Hansard source

The Democrats do not oppose the Quarantine Amendment (National Health Security) Bill 2008. Indeed, we fully support the intent of it, which is to strengthen the protection of the Australian community—indeed, the global community, frankly—with regard to highly contagious and communicable diseases. The updating or amending of the Quarantine Act to achieve that is certainly an important goal and one that is consistent with continuing efforts to cooperate in this area globally. For that reason we certainly support the bill and its intent. We do, however, have a couple of concerns about the way some of these powers may be used, including the capacity to charge individual people for the recovery of the expenses of immunising or providing prophylaxis type treatments, which is one of the new components of the legislation.

I am advised that the core part of the Quarantine Act relating to this, section 75, has never been used. So we are obviously dealing here with extraordinary situations, emergency situations. I fully appreciate that, in such circumstances, when you are looking at all the checks and balances, some of those other procedural safeguards sometimes have to go by the wayside. But, perhaps as a result of my views being coloured by seeing the way our migration laws and processes have been distorted, perverted, debauched and politicised over the last decade or so, I immediately become apprehensive when I see provisions that give wide-ranging discretion to government officials and that do not have appeal rights. I appreciate that if a quarantine officer or the Chief Medical Officer identifies somebody as potentially having a major communicable disease, whether it is one of the traditional ones—if I could use that word—like cholera, plague or rabies, or one of the newer ones like avian influenza or SARS, then obviously they have to act urgently, and the suggestion that they might have to wait until any legal challenges have occurred is not plausible in that context. But, particularly when we are talking about individuals being subject to cost-recovery provisions, it does raise some concerns for me about how that could potentially be misused, either in a malevolent, politicised way—which I do not suggest this government is doing, but I know that has happened to people in the past, with migration issues, as they arrived in Australia—or in some other way down the track. Also, as can often happen when you give any public official unfettered power and unfettered discretion, procedures can be less fair than they might otherwise be. It is really for those reasons that I want to raise the concern, not because I think there is some nefarious intent here. I always get concerned, because of experience, when there is a lack of safeguards, even when an emergency situation applies—in fact, sometimes specifically when the label ‘emergency’ is used to justify the removal of any sort of concept of a fair go or of due process, regardless of the circumstances. I think Senator Colbeck, in much more sedate terms, raised a similar question in a general sense about parts of this legislation.

It is clear that the provisions do not apply to Australian citizens or people in transit, which I understand to mean the crew of airliners or vessels or whatever, but it certainly applies to newly arrived migrants and, I would assume, to temporary migrants. I assume it would apply to asylum seekers, for example, when they arrive. They are all, quite rightly, assessed for health purposes before they are allowed into the Australian community—and, in any case, they are usually locked up for a lot longer for totally non-quarantine reasons, much to my disapproval. Nonetheless, I am concerned about the potential for these individuals being subjected to a charge, to personal cost-recovery.

I note there are provisions in the bill allowing the minister to remit or refund part or all of the fees if there are exceptional circumstances. But this appears to be completely a matter of ministerial discretion. My understanding is that there is no capacity for any independent review or assessment of whether or not there are exceptional circumstances. As always happens with ministerial discretion, there are no formal appeal rights or processes for applying for remission or refund of fees, so you cannot appeal against the fact or seek independent merits review of the fact that the minister is not going to exercise their discretion. I do not know what the size of the fees are likely to be here. I am not sure whether the minister can give some sort of indication of those things. I know that the fees are not meant to be greater than the actual cost of the measures that are implemented. I am not sure what capacity the minister has for this, but I do seek at least some sort of assurance that in these circumstances—and I appreciate that they are exceedingly rare—there is some wide scope for fair treatment here with regard to people not being slugged with significant costs.

I realise that part of the condition for people getting a visa is that they have to meet the cost of health checks. But people obviously do not go round deliberately trying to catch these diseases. People may have become exposed, for example, to bird flu just before arriving in Australia. So, for us to take a very technical and strict interpretation of a person’s obligation to cover the cost of their health check upon arrival in Australia is, I think, a bit unfair. In the context of a country like Australia, which seeks to attract significant numbers of migrants, we need to make sure that, if incidents like these arise, they are handled in a way that does not give an impression that we are being unduly heavy-hand or unfair in the way that we apply these powers.

I am not sure whether the minister can answer my next query, but it is relevant in the broader context of why this legislation has come forward. There has been a lot of work done at an international level to strengthen the way communicable diseases, particularly bird flu, are dealt with. I have had raised with me a number of times the fact that Taiwan is not part of the World Health Organisation and that the People’s Republic of China often does not like official Taiwanese participation in or recognition by these bodies. I do not want to get into a diplomatic argument about that, but it is an issue for us when we are talking about a body that has been set up to operate globally so as to minimise, in part in this area, the risk and spread of disease and to maximise the fast transfer of information about the potential spread of a disease. To have what for all intents and purposes is an independent nation—a nation that has a population slightly larger than Australia’s—not fully participating in that body is unhelpful in achieving what is the core purpose of some of the changes in the legislation before us today.

I think this issue is relevant to the legislation. It is not something that could be contained in the legislation but I think it is a relevant issue to raise because of the goals that this legislation seeks to achieve. I am not sure whether the minister has the capacity—given that she is acting in a representative role today—to indicate whether the Rudd government has any position on that issue. I think it is a legitimate public health question. It is not a question about the long-running stoush between China and Taiwan, which I do not particularly want to get into in this context. It is really a question about maximum effectiveness of international cooperation on public health matters, which impacts on Australia’s interests and is quite separate from the people of Taiwan. Many people are travelling to and from Australia and Taiwan all the time—which, again, I welcome, as I do those people who are travelling to and from mainland China all the time. I thought I would raise that issue in this context to see whether the minister could provide any information now, on notice or individually.

My core concern with the legislation goes to protection of due process. I appreciate that we are dealing with emergency situations, but I think that, even in those circumstances and even if they are very rare, we need to at least have some clear guidelines and procedures to make sure that people do not get a raw deal.

Jan McLucas (Queensland, Australian Labor Party, Parliamentary Secretary to the Minister for Health and Ageing) Share this | Link to this | Hansard source

I thank Senators Colbeck and Bartlett for their contribution to the debate. In the four minutes we have left, I will provide a summing up of the debate to this point. Some reasonable questions have been asked and they warrant a full response. Perhaps we will get to those questions when the debate on this legislation resumes later today, but I do intend to respond to the questions from both Senators Colbeck and Bartlett.

I thank senators who have spoken on the Quarantine Amendment (National Health Security) Bill 2008 and appreciate their contributions and questions. The bill before the parliament today is the second to implement Australia’s treaty obligations relating to public health security under the International Health Regulations, also known as the IHR. The entry into force of the IHR in June 2007 was a public health landmark for the World Health Organisation and for all member states, including Australia. It provided the international community with a new legal framework to better manage its collective defences against public health risks that can spread globally and with devastating effect, as we all know. The National Health Security Act 2007 was passed by the parliament in September 2007. It provides the legal authority and establishes the operational arrangements for Australia to meet its IHR obligations to notify the World Health Organisation of health emergencies and to exchange surveillance information.

The proposed amendments to the Quarantine Act 1908 will implement IHR requirements in relation to vaccinations, prophylaxes, health certificates and charges that may be levied on travellers for measures to protect public health. Firstly, travellers who are subject to quarantine may be required to submit to vaccination or other prophylaxes if this is necessary to prevent the spread of a quarantinable disease or if the vaccination or other prophylaxis is specified in the IHR or recommended by the WHO.

Under our Quarantine Act, Australia has had the capacity to require vaccination for quarantinable diseases for the past 100 years. However, this has not extended to other prophylaxis or to diseases recommended by the World Health Organisation that are not quarantinable diseases. Other forms of prophylaxis include antivirals to treat pandemic influenza or antibiotics to treat bacterial infections. This provision would only be applied for diseases with the most serious consequences, such as SARS, plague, rabies, cholera, smallpox or avian influenza. A decision requiring a traveller to be vaccinated or take other forms of prophylaxis would be made on the advice of a qualified medical practitioner having balanced the wishes of the traveller with the broader public health interest in preventing the spread of a dangerous disease in Australia. A person refusing to comply cannot be forcibly vaccinated but could, for example, be kept in isolation until any danger to the community had passed. I think that partially answers one of your questions, Senator Colbeck.

Secondly, the amendments also provide for the issuing of health certificates proving vaccination or other prophylaxis in accordance with the requirements set out in the IHR. It is critical for public health and to facilitate travel that Australia, along with our international neighbours, has the capacity to issue all essential paperwork in line with international standards.

Grant Chapman (SA, Liberal Party) Share this | Link to this | Hansard source

Order! It being 12.45 pm, the debate is interrupted and we move to non-controversial legislation.