September 27, 2022

SUBJECT | Biosecurity Act | 27 September 2022

Josh Szeps: Dan Tehan was the Trade Minister and is currently the Shadow Minister for Immigration and Citizenship. Lovely to talk to you, Dan.

Dan Tehan: Morning, Josh; great to be with you.

Szeps: What's your concern?

Tehan: My concern is that these laws bestow powers at the federal level—and I'm talking about the Biosecurity Act—to the health minister in a way that no other law does, and it's to the Health Minister alone. And I think we need to review this, and we need to see whether there are the appropriate checks and balances—appropriate parliamentary checks and balances—to how this power can be exercised. You're right, we were able to deal with the pandemic and save lives pretty much like no other country could around the world, but that doesn't mean that we shouldn't review the laws that give powers, especially to the health minister at the federal level, in an unprecedented way: compelling people to provide information; to isolate; to wear specific clothing; to undergo a medical examination; you can compel people to be vaccinated, to take medication and to isolate in specific medical facilities. Now, there might be a very good reason in certain circumstances that we need these powers, but they do need checks and balances to go with them.

Szeps: And where do these powers come from? This is an act that was passed in 2015 with very little fanfare from amongst parliamentarians who had no lived experience of a public health crisis like this.

Tehan: Absolutely. So it went through in the Biosecurity Act of 2015, and that was mainly focused on animal health, but there were these laws also that were put in place to deal with human health during a pandemic. And I don't think the proper scrutiny was given of these laws. When I started in the parliament, I headed the intelligence and security committee. Any laws that went through the parliament that gave powers, especially to our intelligence agencies which impacted on people's human rights, we made sure that there was proper oversight from parliamentary committees. For some laws, which extended excessive powers, we put sunsets on them so that they would need to be reviewed, and if they weren't, if it was decided by the Parliament they shouldn't continue, they would automatically lapse. There were other powers which had to be reviewed, and basically, the Parliament had to tick off on them for them to be able to continue. Now, I think we need to look at this Act again and make sure that there is proper scrutiny there.

Szeps: Now, there's been a lot of a lot of focus Dan Tehan on Scott Morrison arrogating to himself powers of other ministers. That's where the public debate has been focused—secretly swearing himself in as health minister to mitigate some of the responsibility that fell to the Health Minister at the time, Greg Hunt. But you've said that Greg Hunt had told you that he was deeply concerned about the powers that he had under the Biosecurity Act.

Tehan: That’s right, he was concerned that all of the weight of these powers fell on him and him alone—not the cabinet, not the prime minister, as head of the executive — but basically all the powers were bestowed on him. Now he felt uncomfortable with this. And I think that is, you know, one of the reasons if you have a minister who —and ministers are elected to exercise power —but if they say that they're got a high level of discomfort with the powers that have been bestowed on them, surely that in of itself should mean that the parliament looks at this and sees well, how, how can we make sure that these powers are spread across the executive, but also there are parliamentary checks and balances. And it might be, and in some instances, we do this with national security laws, judicial. All these things need to be considered in an examination of the Biosecurity Act.

Szeps: It’s 7.17 with Josh steps on ABC Radio Sydney; we’re speaking with Dan Tehan, who's the Shadow Minister for Immigration and Citizenship, but when he was the Trade Minister in the Morison government he was part of the cabinet when the pandemic hit and was then part of the government that pulled off a very successful public health response to the pandemic, but he's now raising questions about the Biosecurity Act of 2015, which was introduced by the previous Coalition Government and the unilateral powers — the extraordinary powers — that it gives solely to the health minister, and whether that really is the best way of structuring things for public health emergencies in the future. Dan, with the benefit of hindsight, was there overreach?

Tehan: I think it's very hard to tell because we hadn't dealt with a pandemic under these laws. What we were trying to do was get the best outcomes that we could. I think others are better to judge whether there was or wasn't, you know, when you combine what both the federal government did and the state and territory governments, whether that was properly coordinated, and whether we got every aspect right is very hard to tell. I think there would be people who would legitimately say there was an overreach; I think there'll be others who would say that, on the whole, when you look at what happened around the rest of the world, we got it right. I just think that what my great concern of is if these powers happened to be used in a way where the public health outcome wasn't absolutely driving the motivation of the government or an individual minister, then there would be serious worries or concerns about how you would put the checks and balances in place and that's why I think we need to just make sure that the parliament, parliamentary committees, can make sure that there is proper scrutiny, proper transparency, and the laws are being used for public health outcomes. And not as could happen in some instances, more for political outcomes, which are just an egregious act against the Australian people.

Szeps: I mean, you're basically talking about an authoritarian regime there.

Tehan: Well, you're talking about powers being used for the wrong motives, and whether it be, God forbid that that will happen in Australia, we'd be in that situation with a totalitarian regime or something along those lines, but we do know that power can be abused and especially abused, for political motives. And that's why I think we need to get the appropriate checks and balances in place.

Szeps: And is it the case, Dan, that under the Biosecurity Act, basically, the health minister can pull off these enormous infringements on Australian's civil rights by basically saying that it's in his belief that it’s in the best interests of public health, but there's no review, there's no proactive review process for anyone to say, well, hang on, is that actually justified?

Tehan: That's absolutely right. So, pretty much at the stroke of a pen, he can impose these powers and say that he's doing so because it's in the interests of the public health of Australians. Now, there should be some checks and balances when that means that you can stop people coming into this nation, that you can compel people to wear clothing, to be vaccinated, to spend time in a dedicated medical facility — these are extraordinary powers. Now there could be a very valid reason in some instances for them to be used, but that should need to be able to be transparently declared as to why what the public health reason is. All these things need to be properly legitimised if we should allow a single minister to have those powers.

Szeps: Thank you, Dan; good to talk to you.

Media contact | Cate Mercer-Grant 0408 564 232