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Thursday, 19 June 2008
Page: 2848

Senator BARTLETT (12:30 PM) —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.