SUBJECT | Biosecurity Act | 27 September 2022
JOE HILDEBRAND: G’day Dan, how are you? Welcome to Afternoons.
DAN TEHAN: Great to be with you, Joe, and I'm very well, thank you. How are you?
HILDEBRAND: Excellent. Delighted to hear it mate; very well also. You've said, quote, the Government must have-or the parliament, the whole parliament, I should say, must have been asleep at the wheel, and I include myself in that. That's refreshing candour and something we're not often used to from politicians. So well done on acknowledging that. Are you surprised that you and so many of your colleagues on both sides of the chamber failed to realize just how sweeping these powers were?
TEHAN: I am, and normally, when we put forward a piece of legislation like this, and it's reviewed, we put in place checks and balances. One of the first jobs I had in the parliament was as chair of the Intelligence and Security Committee. So, when we put forward five major pieces of national security legislation, we made sure that there was parliamentary oversight of our intelligence agencies because we're giving them more power; some of the laws which gave excessive power to them, we put sunset clauses on or we had review mechanisms so either the laws would end or they would have to be reviewed before they could be continued. And I must say, I was completely surprised to find out that this Biosecurity Act in 2015, which gives the Health Minister unprecedented powers in this nation, had none of those checks and balances, and now we're through the pandemic I think it is time that we looked again at it and saw and looked and thought, how can we put better checks and balances in place?
HILDEBRAND: And again, I don't think anyone is suggesting that the government doesn't need special emergency powers if it does have to handle something like a pandemic, but it's astounding that this act, and I did not realize this either. This Act was introduced not by the Health Minister and not necessarily envisaging a human pandemic, but by the Agriculture Minister at the time, Barnaby Joyce, and was supposed to be, or I suppose the idea behind it, it was envisaged as giving the Minister power to stop things like, you know, fruit flies or agricultural or animal or plant diseases coming into the country. Is that right?
TEHAN: That's correct. The majority of the bill is about keeping things like Foot and Mouth Disease out of Australia that we all want to see happen, and we want to make sure that we do have the ability to be able to deal with that. And then, it's basically tacked on to that are these human health parts of the bill. And they're the parts which really didn't get the scrutiny that they deserve. And I think that's the part that we really need to be focused on. I know at the time when we were looking at what do we need to do as we were confronted by the pandemic, Greg Hunt, I had conversations with him, was uncomfortable with the amount of power-unilateral power that it gave him. Now, ministers are there to exercise power, so if you're uncomfortable with the laws that have been given to you, I think there's a very good insight as to why we need to relook at it. And for the confidence of the person who ultimately has the responsibility to enact those powers, I think they would be better able to do their job if there were proper checks and balances of the exercise of that power in place.
HILDEBRAND: And I think, as you say, I think there are two questions that you're sort of raising here: one is how sweeping these powers should be? And then the second is how transparent and how much oversight should be the minister who wields them have. The laws that exist as they do at the moment provide powers for the government to order people to wear specific clothing or equipment and, I suppose, mask mandates would be an example of that; to be decontaminated; to undergo a medical examination and diagnostic testing; and also to be vaccinated or treated and to take medication or be isolated at a specified medical facility. Are you comfortable with all those powers remaining? Or do you think that they need to be better specified and better clarified? I mean, something like a quarantine facility, again, this is something that I assume, you know, might have been in someone coming back from an area where there'd been an outbreak of Foot and Mouth rather than someone who is coming back and needs to be locked in a room for two weeks.
TEHAN: I think they need to be better specified and better clarified because then you can make sure that the appropriate checks and balances are put in place for the exercising of that power. Some of the powers mightn’t need as much scrutiny as others, but obviously, the more excessive the power, for instance, forcing someone into a quarantine facility or forcing the vaccination of someone, that needs proper checks and balances in place. Because I could only see on the rarest or rarest of occasions, would any government want to pursue that course. So that's why we need to look at these laws. Look at, okay, which ones are appropriate, which ones would only be used in very extreme cases and then put the necessary checks and balances in place that would require a minister or a government or a cabinet to tick off on.
HILDEBRAND: And the power to force people to undergo some form of medical treatment or force people to have something put into their bodies against their will, I must admit, I was not aware that the government had that power. Obviously, the government can withdraw privileges or put restrictions on what people can and can't do if they're not vaccinated, but the idea that you could actually say, ‘no, it's the law, you have to have this, I didn't know that was out there. And I say that as someone who is quadruple-vaxed myself, I think anti-vaxxers are fools, but I'm still not comfortable with the government being able to forcibly stick something in their body against their will.
TEHAN: It is a huge, huge impingement on someone's civil liberties. And if you're going to impeach someone's civil liberties in that way, you have to have the absolute right reasons to be able to do it, the right public health reasons to be able to do it-and you have to have the appropriate checks and balances in place. Because, like you, I really can't see a circumstance where that would be needed, but if you were, and if the debate was that there was a case where it needed to be done, well, then you have to make sure that that cannot be used in an inappropriate way. So that's why we need to have this discussion, these debates, we have to get the public health experts in, and we need to make sure that that this bill is completely re-examined.
HILDEBRAND: And you've said it needs to be reviewed by a Joint Standing Committee of both houses of parliament, which I think is eminently sensible. Have you heard back from the government or other crossbenchers about whether there's support for a review?
TEHAN: Look, I haven't at this stage, but my hope is that it will be looked at. The relevant Minister has said that he thinks it needs to be reviewed. He hasn't specified what that review would look like, but my hope is that, given now, I think there's a greater awareness of the powers within the bill that will probably be looked at. And the best way to do that is through a bipartisan committee of both the Senate and the House because if we can get an agreement through a committee of that nature, it means that you will have a bill which has the appropriate checks and balances in it.
HILDEBRAND: Yeah, look, I couldn't agree more. And I have to say it is always —a bit boring, perhaps —, but I always love to see politicians reaching across the aisle and trying to reach a consensus on these issues, especially on matters as important as this one. And, as I said earlier, it's always very refreshing to hear a politician admit fault on their own side as well. Dan Tehan and it's an absolute pleasure to have you on afternoons, and thanks very much for what was a fascinating chat. Hopefully, something can be done about this.
TEHAN: Thanks, Joe, and really appreciate your interest.