ED CORY. Border Security in a Pandemic

Apr 20, 2020

A ship docks in Sydney, some passengers are sick. Starting in the still dark morning, the passengers commence disembarking and head home. And all hell breaks loose …

Following the ‘Ruby Princess affair’, the focus has been on whether Australian Border Force or the NSW Health Department dropped the ball, with consequences that are still rippling out from that unfortunate vessel. ABF, the Department of Home Affairs and their Ministers have proclaimed loudly and long their mission to, and success in, keeping Australia safe. So when ABF are involved in a major border breach at a wharf in Sydney Harbour, eyes turn to those who have taken on this mantle and ask ‘where were you when we needed protection from disease and death?

But what of the Commonwealth Department of Health? On 6 June 2013 at Senate Estimates hearings for the Department, in response to a question framed around national security considerations and advice from national security agencies, the then Secretary of the Department and the then Chief Medical Officer described the ‘novel coronavirus’ as “very scary” and of “quite some concern” respectively, with the Chief Medical Officer going on “We are considering the measures that we would take … and liaising with the appropriate people across the country.“

It is unclear what consideration ensued, and what the liaison achieved, over the last seven years. Prof Roger Bradbury suggests the answer is ‘not enough’: https://www.canberratimes.com.au/story/6723588/what-plan-and-what-stockpile-australias-pandemic-preparedness/?cs=14258

We do know that the 1908 Quarantine Act was replaced with the Biosecurity Act 2015, with the Commonwealth Chief Medical officer identified as the Director of Human Biosecurity, with power to delegate to Commonwealth, State and Territory staff powers as ‘biosecurity officers’ and ‘biosecurity enforcement officers’. These powers are focussed on pests and the like arriving on goods and animals via ships and aircraft, and on infectious diseases carried by persons. They allow the imposition of ‘control’ orders on individuals.

More generally relevant are the provisions of the National Health Security Act 2007 providing for the Commonwealth Minister for health to enter into agreements with the States and Territories with a view to (amongst other things) 7(1)(a) preventing, protecting against, controlling or responding to a public health event of national significance… . While the Act focusses on the flow of information, it is not clear what action might be available to the Commonwealth Minister (or the Secretary of the Department) under this Act. That it requires an agreement with the States and Territories could suggest that the Commonwealth’s powers to direct or act unilaterally may be limited.

This then returns us to ABF and the Biosecurity Act 2015. The ABF does not appear to have explicit legislative authority over individuals outside the customs and immigration legislation, though in the current context potentially infectious non-citizens might be able to be dealt with under the latter legislation. In so far as potentially infectious Australian citizens are concerned, it would appear that Biosecurity Act 2015 provides a legislative basis to act in respect to both citizens and non-citizens. The question then is whether the appropriate delegations to ABF officers from the Chief Medical Officer (as Director of Human Biosecurity) were in place, together with the supporting instructions and procedures to permit, perhaps require, ABF to act.

Given ABF staff are not health professionals per se, it would be logical to entrain under the Act the State/Territory health agencies to provide, with the Commonwealth Department of Health, professional services and advice to ABF. The danger here is that the ABF’s primary focus (border protection) is lost or obscured, submerged in technical health issues and decisions, and perhaps other pressures. This is more likely if the eventuality, in this case a human health pandemic, has not been the subject of specific preparedness planning, training and practice.

Hindsight is wonderful, but not needed here. This pandemic was foreseen as far back as 2013, even if the timing and scale were not predictable. We know that there was a failure at the border, which resulted in a significant escalation and spread in the health emergency. We know that the danger that manifested itself there was already starkly evident elsewhere, but even that was not enough for sensible precautions to be implemented.

We are all still grappling with the consequences of this pandemic, but it is not too soon to start looking below the surface, and ask whether we could have, should have, been better prepared. This discussion focusses on the Commonwealth, given the nation-wide impact of the pandemic, and the critical importance of the border in stopping, controlling and/or limiting its spread.

Another reason for focussing on the Commonwealth is its rhetoric around ‘strong borders’, the formation and strengthening of the Department of Home Affairs, and its focus on a militaristic Australian Border Force to exercise control over the border.

The key issues for the Commonwealth are the medical stocks and related supplies to deal with a pandemic, and the legal, administrative and procedural arrangements to deploy those stocks, manage the people potentially or actually infected to minimise the outbreak, and maximise the medical and other outcomes of managing such a pandemic.

There are a number of questions to be asked, the first being exactly what “considerations … and liaising” were undertaken, and what were the outcomes? Was any scenario planning or war-gaming of potential outbreaks undertaken? What role was border control to play, who were the actors at the border, were the necessary legal and administrative arrangements examined, and were any deficiencies identified? If so, what action was implemented to address the deficiencies? What advice was presented to Government or Ministers on the potential for outbreaks, the implications of outbreaks, and the measures needed to prepare for those eventualities including the adequacy or otherwise of the legislative frameworks? What exercises were undertaken to test (and practice) the identification of, and responses to, a pandemic?

The two inquiries under way in NSW can be expected to cast some light on the detail of what went wrong in this specific incident. They may also point to more systemic issues or other failures having a bearing on it.

But that does not mean the Commonwealth should sit back and wait to see what bullets come its way. There are serious questions about its performance, some of which may be related to this specific incident, others which go beyond it, which warrant expeditious treatment.

We don’t know how soon the next pandemic will happen. The best way of preparing for the next is to closely examine the good things about our preparedness for this one and our response; what we didn’t do well prior to or during this one; and draw lessons that can be implemented for the next pandemic.

Let the learning begin.

The author is a retired Commonwealth public servant, a self-confessed policy wonk with far too much time on his hands.

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