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Wednesday, 9 September 2009
Page: 9187

Mr DUTTON (12:15 PM) —The National Health Security Amendment Bill 2009will amend the National Health Security Act 2007 to widen controls over the security of biological agents that could be used as weapons, agents known as security sensitive biological agents or SSBAs. It will enable the Minister for Health and Ageing to respond immediately to secure public health and safety in the event of an SSBA related disease outbreak. It will establish new controls on the handling of biological agents and the responsibilities of those who do handle them by extending the provisions of the legislation to suspected security sensitive biological agents, requiring those dealing with material that is not known to be a dangerous agent but is suspected of being dangerous to treat as if it were an SSBA. Additionally, inspectors involved in monitoring entities and facilities dealing with such biological agents will be given search and seizure powers by these amendments.

The National Health Security Act, passed by parliament in 2007 under the previous coalition government, was the culmination of lengthy consultations and negotiations between the Commonwealth and state governments dating back to 2002. After fatal anthrax attacks in the United States and subsequent white powder hoaxes in Australia, the Council of Australian Governments agreed to review the security of hazardous materials including harmful biological materials. A mandatory national regulatory system was decided upon as the most effective means of minimising the security risks posed by SSBAs. The phased implementation process was agreed and, after legislation was passed in 2007, the first regulation of tier 1 biological agents came into effect at the end of January this year. Security sensitive agents listed on tier 1 include anthrax, botulinum toxin, Ebola virus, foot and mouth disease and ricin, amongst others. Regulation of tier 2 agents is due to come into effect at the end of January 2010. These security sensitive biological agents, the likes of yellow fever virus, cholera and typhoid, are considered less likely to be a threat to Australia.

The amendments to the legislation now before the House are a result of consultations between government and entities that deal with security sensitive biological agents over the 18-month period between the passage of the national health security legislation through the parliament and the introduction of the tier 1 regulations this year. In government, the coalition delivered the National Health Security Act as part of our commitment to enhancing Australia’s capability to protect the health of the nation and to respond to naturally occurring epidemics or to terrorist attacks involving chemical, biological or radiological agents. At the time, it was recognised that further measures would be needed to enable national responses to health emergencies and mass casualty situations.

These amendments respond to some of those difficulties. They will empower the minister to respond immediately to an SSBA related disease outbreak. The minister will be empowered to relax or suspend some or all of the regulatory requirements relating to such dangerous biological agents. The minister will be able to impose new conditions to ensure protection of public health and safety and will be able to take action by legislative instrument which can take effect immediately and be varied or revoked to suit rapidly changing circumstances. It will not be the subject of the usual provisions of the Legislative Instruments Act.

The opposition notes that this does raise some concern about parliamentary oversight of decisions that could be critical not just to the situation unfolding but to the nation as a whole. The Senate Standing Committee for the Scrutiny of Bills has noted this situation and asked the minister to advise how the parliament can scrutinise any emergency arrangements put in place. The committee has also noted that these amendments could have the effect of altering the obligations of an entity without notice or without an opportunity for review and, again, has asked that the minister provide advice on the reasons for these changes.

It should be noted that entities involved with or representing those that handle security sensitive material have voiced no concerns about the provisions of this legislation. The minister’s responses to these questions are expected to be tabled in the Senate today and we look forward to scrutiny of that response. While the legislation provides for immediate action, the fact that the action is pursued via the means of a legislative instrument does allow for parliamentary scrutiny; albeit, in these circumstances, post the event. Neither the act nor the bill makes specific reference to the legislative instruments not being disallowable, and the instruments do not fall within the types of instruments that are not disallowable under the Legislative Instruments Act 2003. On the basis that legislative instruments made by the minister under this legislation would be disallowable, we provide our support to that arrangement.

What must be kept in mind are the circumstances in which these powers would come into play; that is, they would involve a serious threat to the nation requiring an immediate response. The coalition notes that the legislation does provide certain protections. The minister may only make a legislative instrument under this legislation if satisfied on two key matters: firstly, that there is a threat involving such an agent to the health or safety of the public, the economy or the environment; and secondly, that the making of the legislative instrument would help to reduce that threat.

Additionally, the minister must consider relevant expert advice before making a legislative instrument to deal with an SSBA threat. That advice must come from the Chief Medical Officer, the Commonwealth Chief Veterinary Officer and another expert with scientific or technical knowledge of security-sensitive biological agents. And the minister must only act after taking advice from the Secretary of the Department of Health and Ageing that the legislative instrument would help in reducing the threat posed by SSBAs to the public, the economy or the environment.

The government argues that the extreme nature of a threat posed by an SSBA-related incident warrants delegation of legislative power to ensure an immediate response can be made to an emergency disease situation. Commonsense would acknowledge that in the circumstances of a biological threat to our country or any part of it, the government must be able to use all means at its disposal to negate the threat. On that basis, the coalition will support the legislation.