16 August 2020

Ruby Princess Inquiry Report

The report of The Special Commission of Inquiry into the Ruby Princess is of interest for its comments on Commonwealth-State relations (some of which are quoted below) and what might best be described as the humanity of Special Commissioner Brett Walker in discussing his findings.

The report states

The experience of conducting this Inquiry confronts one with the unpleasant possibility of forming and expressing adverse judgement of one’s fellows. It is all the more unpleasant when they are genuine experts, truly public servants, and hard workers. The Commission’s Terms of Reference do oblige me to do so, if I reach relevant conclusions. I have done so, as noted in this Chapter and throughout the body of this Report. It is accordingly right that I acknowledge as Commissioner that these imperfections in the State’s public health work on 18-19 March 2020 in relation to the Ruby Princess should not be taken as damning condemnation of the individual public servants involved. The lapses identified are not in some way typical or characteristic of them or their colleagues. Some of these estimable individuals, as the evidence showed, remain in charge of weighty aspects of the State’s frontline response to the pandemic. I have to say that my confidence in their good faith and skilled diligence in these continuing efforts was not dented by the criticism I have expressed about the Ruby Princess episode. Everyone makes mistakes, and when we judge one another we should bear that in mind. As Commissioner in this Inquiry, I have been made sharply aware that, while we all make professional mistakes, the burden and stress created by life-and-death consequences in some but not all professions should engender sympathy and regard for those (like the Expert Panel in this case) whose duties are carried out under the weight of such consequences. 
Pace the Prime Minister, it is not an adequate answer to scrutiny of a public health official’s conduct in this Inquiry to assert that he or she was doing their best. The question this Commission’s Terms of Reference presents is whether, on this occasion, that was good enough – not in order to stigmatize or denounce, but in order to explain and learn. Inherent in the comments made in [1.40] above and in this [1.41] is the considered acceptance by this Commission of the genuine engagement by all the public health officials whose conduct has been examined in this Inquiry, in the difficult and multifarious tasks and challenges posed by COVID-19, of which the cruise ship program, and the Ruby Princess on 18-19 March, was but one integer of one part. 
Other systemic details of the decision-making on 18-19 March are described and assessed in the body of the Report. One theme common to some of them warrants noticing in these general reflections. When legal power is being exercised, including when a legal duty is being performed, a modicum of formality probably helps rather than hinders. This is not at all a plea from a lawyer for more red tape – perish the thought. Rather, it suggests that tasks such as considering whether to grant pratique (ie permission to disembark or unload a ship or aeroplane) lend themselves to deliberate, explicit mental consideration of all relevant matters. Understood as a servant and not as a master, it is a suggestion for an ordered approach akin to a checklist. If more than one officer participates, the redundancy enhances the prospect of avoiding critical errors. Part of such an ordered approach will usually be a near contemporaneous written (or digital) record, including of informative communications. All the crucial steps on 18-19 March 2020 in relation to the Ruby Princess would have been improved, most likely, and for the public benefit, had this traditional formality been more thoroughly observed. No decrement in speed of process, or appreciable increment in administrative burdens on busy officials, would have resulted. And, most likely, a slip like the out-of-date epidemiological criterion would not have gone undetected had members of the Health staff and of the Expert Panel expressly checked off an item eg of consistency with current CDNA requirements. 
As the body of the Report exhaustively sets out, the governmental powers and responsibilities brought to bear on the matter of responding to the threat of COVID-19 on board the Ruby Princess on 18-19 March 2020 are by no means straightforward to describe. The legislative drafting is, unfortunately, touched with the puzzle-making flair that is a part of our national legal genius. And, above all, the scheme (if it deserves that label) is explicitly an essay in co-operative federalism – Commonwealth and State officials all playing a part in an overall combined endeavour. At the outset, it is worth remembering that procedures for protecting us from health risks when passengers disembark from cruise ships are a very good example of useful and sensible co-operative federalism: because quarantine, overseas trade and immigration are Commonwealth powers and intrinsically national (quarantine, not only national), and because health regulation in the territory of a State is, naturally, among the most pressing of the so-called police powers (constitutional, not constabulary) of the State. In any event, this Commission sees no reason to deprecate the concurrent operation, in particular, of the Commonwealth’s Biosecurity Act 2015 and the State’s Public Health Act 2010.

Special Commission Walker comments

The one fly in the ointment so far as assistance to this Commission goes, is the stance of the Commonwealth. I hasten to exclude the lawyers for the Commonwealth, whose written assistance and production of materials are very much appreciated, in the circumstances. Those circumstances are dominated by the assertion on the Commonwealth’s part of an immunity from any compulsory process of a State’s Special Commission of Inquiry. A Summons to a Commonwealth officer to attend and give evidence about the grant of pratique for the Ruby Princess was met with steps towards proceedings in the High Court of Australia. Quite how this met the Prime Minister’s early assurance of full co-operation with the Commission escapes me. 
This waste of time and resources, when time, in particular, was always pressing, was most regrettable. As the quality and helpfulness of the voluntary submissions by the Commonwealth demonstrated, there was no problem of resources or governmental embarrassment conducing against the Commonwealth fully co-operating with this Commission, by providing one of its officers to give evidence. It may even be that, had this happened, the confusion about the ABF noted in [1.47] above could have been avoided. It seems that this practical approach was swamped by a determination never to concede, apparently on Constitutional grounds, the power of a State Parliament to compel evidence to be provided to a State executive inquiry (such as a Royal Commission or a Special Commission of Inquiry) by the Commonwealth or any of its officers, agencies or authorities. 
This is also not the place to set out arguments for and against this Commonwealth position. As a South Australian Royal Commissioner, I have previously expressed views contrary to the Commonwealth’s stated position. I maintain those views. Further, I continue to believe that this difference about something as fundamental as a State’s legislative power to bind the Commonwealth to assist in a State inquiry just as every other legal person in Australia would be obliged to do, disfigures the area of co-operative federalism. For example, in this case, it is of great governmental significance to New South Wales to study and inform the public health arrangements by which the risk of COVID-19 on the Ruby Princess was addressed. One hopes the Commonwealth also perceives that significance. But until this constitutional impasse is cleared, the State should re-consider its arrangements such as under the Biosecurity Act, so as to procure advance approval for mutual access to information by the co-operating polities. Meanwhile, perhaps the Special Commission of Inquiry Act 1983 should itself be reviewed and modernised (along Victorian lines, perhaps) so as to clear the decks for argument only about the alleged Commonwealth immunity.

The Key Findings are summarised as 

Chapter 9 
On 10 March 2020, the CDNA amended its Guidelines, such that all persons on board the Ruby Princess with an ARI or ILI became suspect cases for COVID-19: meaning they should all have been tested for the disease. The Expert Panel did not have this suspect case definition in mind when they conducted their risk assessment on 18 March. This was a serious and material error. 
The Expert Panel was not helped by the drafting of the risk assessment form, which was not updated with the new “suspect case” definition. This too was a serious error. 
The risk assessment form should have been drafted so as to clarify for the Expert Panel whether persons on this ship who had symptoms of respiratory illness were told in advance of assessment at the onboard medical centre that the consultation would be free of charge. 
The ARD Log should have been read by all members of the Expert Panel. They should have noticed the “significant spike” in ARI/ILI rates on the ship, particularly on 17 March. They should have requested an updated log either late on 18 March, or early on 19 March. These are all serious errors.
A graded risk assessment approach may at times provide a useful framework for public health risk assessments. It did not here, either before 10 March, or after. It was a distraction from the real questions: what are the consequences of the risk eventuating, and what are the appropriate precautions to take in light of such consequences? 
An ILI rate of 1% or more had some utility for the assessment of whether COVID-19 was circulating on the Ruby Princess during the 8 March voyage. That utility was limited. The more important question was: are there suspect cases of COVID-19 on board the ship? 
NSW Health should have ensured that cruise ships were aware of the change to the definition of a “suspect case” for COVID-19 made on 10 March. This would have resulted in the identification of such cases on the Ruby Princess. 101 persons fell within the suspect case definition by 18 March, and 120 by the time the ship docked. NSW Health should also have ensured that such persons were isolated in cabins. These were serious mistakes by NSW Health. 
The failure to ensure that swabs were collected by an onboard health assessment team in accordance with the requirements of the 9 March Enhanced Procedure was a serious failure by NSW Health. 
The delay in obtaining test results for the swabs taken from the Ruby Princess on the morning of 19 March is inexcusable. Those swabs should have been tested immediately. 
In light of all the information the Expert Panel had, the decision to assess the risk as “low risk” – meaning, in effect, “do nothing” – is as inexplicable as it is unjustifiable. It was a serious mistake. 
Chapter 12 
In relation to the insufficient supply of swabs available to the medical staff on the 8 March voyage of the Ruby Princess, no criticism is made of Dr von Waztdorf. 
Dr von Watzdorf gave a truthful answer to the question on the pre-arrival risk assessment form as to whether health assessments in relation to respiratory illness were provided free of charge. 
No criticism is made of Mr Little for not informing NSW Health of the “significant spike” in ARI/ILI numbers that he perceived on the Ruby Princess as at 17 March because that information was provided to NSW Health in the ARD Log on 18 March. 
Dr von Watzdorf ought to have notified NSW Health of the additional passengers and crew diagnosed with an ARI or an ILI on 18 and 19 March 2020. However, this was an oversight by her, which did not amount to a failure to comply with policies and procedures in place at the time. 
Carnival should have ensured that Dr von Watzdorf was made aware of the change to the CDNA “suspect case” definition on 10 March 2020. They should also have ensured that passengers and crew aboard the Ruby Princess were informed that there were suspect cases of COVID-19 on board. Those persons meeting the definition of a suspect case should have been required to isolate in their cabins. 
Chapter 13 
Passengers were incorrectly advised by the ABF during the cruise that their 14-day period of self-isolation would commence from the date of departure from the last overseas port visited by the Ruby Princess, being Napier on 15 March. This inaccuracy was later clarified during disembarkation at the OPT on 19 March, when passengers were provided with a fact sheet published by the Commonwealth Department of Health which relevantly instructed them to self-isolate for 14 days from their arrival in Sydney. 
The directive to allow passengers to onward travel interstate and internationally after disembarkation on 19 March did not appropriately contemplate or comply with the terms of the Public Health Order that came into effect on 17 March, which required all cruise ship passengers entering the State from any other country to isolate themselves in suitable accommodation for 14 days. Under the terms of the Public Health Order, the State Government should have arranged suitable accommodation for all passengers who were not residents of the State. 
The fact sheet linked to an email sent to passengers at 10:46am on 20 March incorrectly advised that they were permitted to continue with onward travel, despite being identified as “close contacts” of a confirmed COVID-19 case. Although this advice was corrected by NSW Health by the evening of 21 March, it was at that stage too late to prevent a considerable number of interstate and international passengers from onward travelling, including some passengers who were symptomatic during transit.

The Special Commission  Recommendations are

That the NSW HBO Guideline should be reconsidered in light of the criticism made at [11.13], namely that it regards a grant of pratique as the default position, and indicates that pratique should only ever be withheld where there is a compelling reason to deny it, for example, where a HBO has a “genuine belief” that other passengers “were exposed” to a LHD. The current HBO Guideline does not appear to satisfactorily reflect an appropriately precautionary public health approach. 
That Human Biosecurity Officers, DAWE, the Commonwealth Department of Health and NSW Health develop: a) better awareness of their own and each other’s roles and responsibilities for human biosecurity; and b) more formal protocols for their interaction and communication. This includes, but is not limited to, the grant of pratique. 
 That human health reporting within MARS be reviewed with a view to: a) improving its ability to be readily adapted to novel circumstances and suggested improvements (see, eg, [11.52]); b) improving its clarity of expression and the coherence and intelligence of the format of its design and presentation (see, eg, [11.54] to [11.60]); and c) improving access to other agencies (such as the Port Authority) with a legitimate interest in receiving the data for their own operations. 
That any future review of the Biosecurity Act consider the utility and possible expansion of human biosecurity control orders so as to be applicable to persons or groups. 
That the Biosecurity Act make explicit a requirement to update superseded human health information.