Bills Digest no. 48 2007–08
Quarantine Amendment (Commission of Inquiry) Bill
2007
WARNING:
This Digest was prepared for debate. It reflects the legislation as
introduced and does not canvass subsequent amendments. This Digest
does not have any official legal status. Other sources should be
consulted to determine the subsequent official status of the
Bill.
CONTENTS
Passage history
Purpose
Background
Financial implications
Key issue
Main provisions
Conclusion
Endnotes
Contact officer & copyright details
Passage history
Quarantine
Amendment (Commission of Inquiry) Bill 2007
Date introduced:
12 September 2007
House: House of Representatives
Portfolio: Agriculture, Fisheries and
Forestry
Commencement:
On Royal
Assent
Links: The
relevant links to the Bill, Explanatory Memorandum and second
reading speech can be accessed via BillsNet, which is at http://www.aph.gov.au/bills/.
When Bills have been passed they can be found at ComLaw, which is
at http://www.comlaw.gov.au/.
To enable a
Commission of Inquiry into the outbreak of equine influenza in
Australia to operate under the aegis of the Quarantine Act
1908, but with powers under the Royal Commissions Act
1902.
The nature, occurrence and effects of equine
influenza (EI) are described as follows in the latest version of
AUSVETPLAN, which outlines Australia s proposed response to
outbreaks of EI:
Equine influenza (EI) is an acute, highly
contagious, viral disease, which can cause rapidly spreading
outbreaks of respiratory disease in horses. Other equine species
are also susceptible. Australia and New Zealand are the only
countries with significant equine industries that have remained
free from EI.
EI is endemic in Europe (except Iceland), North
America and South America. Sporadic outbreaks of disease occur in
these regions, and vaccination is practised. Epidemics occur when a
significantly new antigenic virus strain emerges or is introduced.
The most recent such occasion was in the United Kingdom in 2003. EI
is also endemic in North Africa and Asia.
In the past 20 years, serious epidemics in South Africa (1986,
2003), India (1987), Hong Kong (1992), Dubai (1995) and the
Philippines (1997) have been associated with importations of
subclinically infected horses by air from endemic areas and
inadequate post-arrival quarantine procedures. [emphasis
added]
An outbreak of EI in northeast China in 1989
with high morbidity and mortality revealed a genome dissimilar to
known equine viruses, but similar to some of recent avian origin.
Transfer of an avian virus directly to horses without reassortment
was suspected, implying susceptibility of horses to some avian H3N8
strains (Guo et al 1992).
There has been no occurrence of EI in Australia or New Zealand,
and vaccination is not practised. Australia s free status has been
confirmed by paired serology as part of a larger case control study
of horses with respiratory disease (Christley et al 2001). New
Zealand conducted serological surveys for EI in the 1980s and found
EI antibody in only a few horses with a history of vaccination
(Horner and Ledgard 1988).
In fully susceptible horses, clinical signs of EI are easily
recognisable. The primary signs are sudden onset of pyrexia (to
between 39 C and 41 C); a deep, dry, hacking cough; and a watery
nasal discharge, which may later become mucopurulent. Other signs
include depression, loss of appetite, laboured breathing, and
muscle pain and stiffness. The disease spreads very rapidly to
susceptible in-contact horses, with high morbidity (McQueen et al
1966, Gerber 1970).
Vaccination reduces the incidence and severity of clinical signs
(Powell et al 1995). Clinical signs in partially immune vaccinated
animals, which can still become infected and shed virus, are
variable and can be very difficult to discern. There may be little
or no coughing or pyrexia. Subclinical infection can occur.
Previously healthy adult horses usually recover from
uncomplicated EI within 10 days, although coughing may persist for
longer. Relatively high case mortality rates have been recorded in
young foals, older horses debilitated by intercurrent disease or
malnutrition, and donkeys. [1]
AUSVETPLAN also outlines the strategies
proposed to contain an outbreak of EI:
Equine influenza (EI) has a short clinical course with minimal
mortality, and there is no long-term carrier state (see Section
1.6.2). Therefore, eradication (stamping out) can be achieved by
effective isolation of infected animals for the duration of virus
excretion, rather than by their compulsory slaughter.
Because of the rapid spread of EI in susceptible equine
populations and the high level of horse movements, the most
important initial priority is to minimise disease spread (ie
containment).
Containment relies on the following principles:
- quarantine of cases and in-contact horses;
-
immediate imposition of horse movement controls
until the extent of the outbreak is clarified;
-
once the extent of the outbreak is clarified,
effective movement controls over horses, equipment and fomites in
declared areas; and
-
effective tracing and surveillance.
[2]
The discovery of a horse suffering from equine
influenza at the Eastern Creek Quarantine Station in Sydney was
announced by the Hon. Peter McGauran, Minister for Agriculture,
Fisheries and Forestry, on 23 August 2007. [3] Fifty-two horses at Eastern Creek, as
well as 27 horses at Spotswood, Victoria, were to remain
quarantined until 30 days after they were proven free of EI.
On 25 August, Mr McGauran announced that 11
horses at Centennial Park in Sydney had been found to be infected
with EI. [4] Also on
25 August, all horse movements in NSW were halted, by a control
order under the
Exotic Diseases of Animals Act 1991 (NSW). Restricted
areas were also established, requiring permits to move horses,
horse vehicles and equipment. [5] A control order was also in effect in Victoria
from 25 31 August, under the Livestock Disease Control Act
1991 (Vic), and was followed by an order prohibiting entry or
import of horses into Victoria from New South Wales or Queensland
during September. [6]
The movement of horses from Victoria to South Australia currently
requires a permit from the South Australian government. Movement of
horses was restricted within the ACT from 1 September 2007.
[7] In South
Australia, a movement ban on horses and equine stock has been
replaced with a permit system (from 3 September 2007 until further
notice). [8] In
Western Australia, a 72-hour standstill was imposed on 25 August,
and has since been replaced with a ban on interstate movement of
horses, ponies, donkeys, mules and equipment. [9] A standstill zone was declared in
the Northern Territory on 27 August, but has been replaced by
restrictions on interstate movements. [10] Finally, there is also a ban on the
importing of horses into Tasmania. [11]
By 11 September, there were 410 infected
properties, 359 dangerous contact properties and 274 suspect
properties in NSW, with over 4400 infected horses, and a total of
27 Restricted Areas. [12]
As to the possibility of eliminating EI, the
head of the CSIRO s Australian Animal Health Laboratory, virologist
Martyn Jeggo has been reported as stating:
I don t know, I ll be quite honest, he says. I
don t know what the chances are at [this] stage.
[13]
The economic cost of the outbreak in the
breeding industry has been estimated at $1 billion from forgone
stud fees and fewer foals being born next year. [14]
On 9 September Mr McGauran announced a $110
million funding package for those affected by EI. Employees will
receive the equivalent of the Newstart Allowance, businesses will
receive $5000, and primary carers will receive up to $60 a day for
each horse that is unable to undertake normal activities, and could
otherwise have generated an income, if not for the quarantine
restrictions. Up to 10,000 horses in the ACT, New South Wales and
Queensland are estimated to be eligible for this payment, which is
expected to cost $44 million. [15]
The main drawback of the compensation scheme
appears to be that breeders are unable to claim for lost income
caused by the inability to service horses. There has been
increasing talk of class actions against the Commonwealth for the
damages caused by the presumed breakdown in quarantine. Twenty-five
trainers at Randwick are reported to have launched a class action,
and thousands of trainers, breeders, jockeys, and riding school
employees are said to be joining a class action to be launched by
Sydney law firm Clinch Neville Long Letherbarrow. [16]
The reasons for the
outbreak of EI are as yet unknown, but a breakdown or deficiency in
quarantine procedures is the most likely cause:
Dr James Gilkerson, president of Equine
Veterinarians Australia, and University of Melbourne Vet School
virologist, said responsibility lay fairly and squarely with
quarantine authorities.
There s a breakdown in the quarantine system somewhere. But I
don t think there s any concrete evidence so far to identify what
that gap is, he said.
Whether it was an animal being released inappropriately in the
quarantine procedures ... that s the most likely. [17]
The Minister himself has agreed with this
analysis:
It is true to assume it is perfectly logical to
think there has been a breach of quarantine. What we don t know is
where or how or by whom. It was a breach of quarantine in all
likelihood. It may have been human error or deficiencies in the
standards of quarantine. Our inquiry is looking at both. How did
the virus escape through the quarantine barriers and were the
quarantine barriers adequate in the first place?
[18]
Calls for an inquiry into the outbreak of EI
were made as early as 27 August, when the Leader of the Opposition
called for an urgent and independent inquiry as to whether there
has been any breakdown in Australia s quarantine procedures .
[19] Queensland
Premier Peter Beattie also called for an inquiry. [20]
On 2 September, the Australian Racing Board
released letters it had written to then Agriculture Minister Warren
Truss in 2004 and 2005, opposing the devolution of quarantine
inspection of recently imported horses from AQIS Veterinary
Officers to private veterinarians employed by importers , and
warning that a quarantine breakdown is the only way Australia will
be exposed to [EI] . [21]
Also on 2 September, the Prime Minister and
the Minister for Agriculture announced that recently-retired High
Court judge, the Hon. Ian Callinan QC, would chair an independent
inquiry. The inquiry would have full powers to subpoena witnesses
and, if thought appropriate, conduct public inquiries and any
legislation required to invest the inquiry with that power [would]
be introduced into Federal Parliament when it reconvenes the week
after next . [22]
Mr Callinan was chairman of the Queensland TAB 1985 90.
The terms of reference of the inquiry have not
yet been announced, although it was reported that they were
expected to be finalised on 3 September. [23] Labor s primary industries spokesman,
Senator Kerry O Brien, has raised concerns that the inquiry will
mirror the Australian Wheat Board inquiry, in which the
responsibility of Government ministers fell outside the terms of
reference. [24]
Reports on 4 September indicated that the
inquiry would have a narrow focus on the immediate causes and
future safeguards rather than industry warnings in 2004 and 2005
about quarantine procedures. The inquiry is also unlikely to
consider compensation issues, leaving this issue to the courts.
[25]
The Shadow Minister for Regional Development,
Mr Crean, has indicated in Parliament that he will be moving
amendments to expand the terms of reference to cover the spread of
EI in addition to its outbreak, to compare Australian quarantine
practice with international standards, to evaluate whether
Australian standards have been adhered to, and to require the
minister to table the report in Parliament. [26]
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The Explanatory Memorandum states that the
Bill will have no financial impact, but the conduct of the inquiry
will of course cost a significant amount. The 2004 Royal Commission
into the Centenary House Lease, for example, cost some $4 million,
[27] whereas the
larger HIH Royal Commission (2001 03) cost some $39 million.
[28]
The traditional means of establishing an
inquiry with wide powers is to use the Royal Commissions Act
1902. Queensland academic Scott Prasser has described the
qualities of royal commissions:
The importance of this statutory foundation is
that it confers on royal commissions and similar bodies, special
and coercive powers of investigation to collect and procure
information, protect witnesses, compel witnesses to attend hearings
and give evidence, even if self-incriminating. However, there are
prohibitions on the use of evidence gathered by royal commissions
in any subsequent legal proceedings. With the exceptions listed
below, most other public inquiries are not established under
legislation and do not have such powers of investigation as royal
commissions. Instead, such inquiries rely on their executive
government appointment and prestige to progress their
investigations.
[29]
-
the outbreak of EI in Australia in 2007
-
related quarantine requirements and
practices
-
and any incidental matters
The focus on related requirements and
practices may exclude the commission of inquiry from considering
whether recent changes to quarantine practice, as
highlighted by the Australian Racing Board, were properly
considered or good policy. This will depend on how the terms of
reference, and the commission of inquiry itself, interpret the word
related .
Proposed sections 66AZ and
66AZA replicate functions that apply to royal commissions,
namely the ability to hold hearings within or outside Australia,
and dispensation from the rules of evidence. Proposed
paragraph 66AZ(3) allows the commissioner to determine the
procedure at the hearings. This is also consistent with royal
commissions which may, at their discretion, adopt an inquisitorial
approach.
Quarantine officers who are seconded to the
commission of inquiry are to be subject exclusively to the
directions of the commissioner (proposed sub-sections
66AZB(2) and 66AZC(3)).
Some or all of the powers of quarantine
officers may be granted to persons assisting the commission of
inquiry (proposed section 66AZC). This appears to
be the key difference from the powers that would be available to a
public servant seconded to a royal commission. See the Key issue
section above.
Proposed section 66AZE gives
the commission of inquiry the powers and status of a royal
commission, except powers of search, which are provided under
proposed section 66AZC. The records of the
commission of inquiry are also to be treated in the same manner as
those of royal commissions.
Schedule 2 makes
consequential amendments to
-
the Archives Act 1983, equating the
records of the commission of inquiry to those of royal
commissions
-
the Freedom of Information Act 1982,
excluding the commission of inquiry from the Act in the same way as
royal commissions and other bodies, and
-
the Privacy Act 1988, excluding the
commission of inquiry from the Act in the same way as royal
commissions and other bodies.
Conclusion
A public inquiry into the outbreak of EI is
obviously called for because of the serious effects of the current
outbreak and the need to ensure that quarantine measures are
adequate and are being adequately enforced. Parliament may wish to
consider whether the definition in proposed section
66AY is wide enough to allow inquiry into all the matters
that have been the subject of public debate.
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Endnotes
[7]. Animal Diseases
(Exotic Disease Quarantine Area) Declaration 2007 (No 2), under the
Animal Diseases Act 2005 (ACT). See ACT Department of Territory and
Municipal Services, Horse Quarantine Declared in the ACT Equine
Influenza , http://www.tams.act.gov.au/live/equine_influenza.
[21]. Letter from
Andrew Ramsden, Chairman, Australian Racing Board, to the Hon. W.
Truss, 24 September 2004, quoted in Michael McKenna and Cath Hart,
Canberra was told of horse flu risk , The Australian,
3 September 2007, p. 1.
[23]. E. Jensen,
Call for public flu inquiry heeded , op. cit.
[27]. Sen. the Hon.
Chris Ellison, Minister for Justice and Customs, Response to
Question on Notice: Royal Commission of Inquiry into the Centenary
House Lease , Senate, Debates, 16 November 2004, p.
101.
[28]. The Hon. P.
Ruddock, Attorney-General, Response to Questions on Notice:
Building and Construction Industry and HIH Royal Commission , House
of Representatives, Debates, 24 May 2004, p. 28913.
[29]. Scott
Prasser, Royal commissions in Australia: when should governments
appoint them? , Australian Journal of Public
Administration, vol. 65, no. 3, 2006, p. 32.
Patrick O'Neill
Law and Bills Digest Section
14 September 2007
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