The 2005 International Health Regulations have been one of the critical international legal instruments at the forefront of the global and national response to the COVID-19 pandemic. The Regulations have provided a wide ranging legal framework for dealing with such diverse matters as the 11 March 2020 declaration by the World Health Organization of a pandemic, to individual state responses. In February and March 2020 the Regulations also came under the spotlight because of the provision they make for the practice of pratique, which until that time had a relatively low profile. Article 1 (1) of the Regulations provide:
“free pratique” means permission for a ship to enter a port, embark or disembark, discharge or load cargo or stores.
Article 23 of the Regulations also give to a state the right to conduct various inspections following the arrival of a vessel to ensure that travellers meet certain public health standards, including under certain circumstances a medical examination. The Commonwealth Department of Agriculture, Water and the Environment (DAWE) describes pratique as a practice “to ensure risks to human health can be identified and managed before the vessel … is unloaded or disembarked”.
The granting of pratique and cruise ships was highlighted in the case of the Diamond Princess which arrived in Yokohama, Japan in February 2020 with COVID-infected passengers. That ship spent two months in quarantine. For Australia, the arrival in Sydney of the Ruby Princess on 19 March 2020 and disembarkation of its passengers without health checks set off a tragic chain of events. Of the 1,682 Australian passengers on board the Ruby Princess, 663 (39.4 per cent) contracted COVID-19 of which 20 deaths were reported, with an additional eight deaths from passengers reported in the United States. A total of 191 (16.6 per cent) of the crew also contracted COVID-19. The circumstances surrounding the arrival of the Ruby Princess into Sydney Harbour, the granting of pratique, and disembarkation of its passengers was the subject of a New South Wales Special Commission of Inquiry by Bret Walker SC which reported on 14 August 2020.
Australia became a party to the International Health Regulations in June 2007, however there is no Commonwealth, State or Territory legislation that seek to give direct effect to the Regulations. Rather, key aspects are principally reflected in Commonwealth and State health policies. Nevertheless, pratique is directly referred to in the Biosecurity Act 2015 (Cth) and as the Commission report notes is provided for in two ways. The first is automatic or “positive pratique” (s. 48). The effect is that no person shall disembark from a ship arriving in Australia unless pratique has been granted. However, as the report observes, the default position under the Biosecurity Act is “automatic (positive) pratique” [4.16]. The second is negative pratique, which will arise in the case of certain vessels on a case-by-case basis. As the report comments: “It is negative in the sense that the vessel will not have permission to dock, disembark or unload until a Biosecurity Officer affirmatively grants pratique” [4.16]. The relevant officer under the legislative scheme sits within the DAWE principally because the Department has the control over biosecurity in relation to vessels, including their pre-arrival reporting obligations [4.18].
A critical issue that arose with the Ruby Princess is that while under the Biosecurity Act a person cannot leave a vessel without the permission of a biosecurity officer, that is until such time as pratique is granted, biosecurity officers located with the DAWE are not health professionals. DAWE officers therefore rely on the expertise of their counterparts in State and Territory health departments before pratique can be granted. However, the Commissioner noted that there was a bias in New South Wales health procedures towards the granting of pratique which was described as the ‘default position’ [11.13]. This may have been an appropriate procedure during normal operating environments, but not following the declaration of a pandemic.
The issues arising from Commonwealth and New South Wales inter-departmental interaction were highlighted in one of the Commission’s recommendations that not only should there be “better awareness” of the respective roles and responsibilities but also that “more formal protocols” be developed for “their interaction and communication. This includes…the grant of pratique” [2.20].
The importance of the Ruby Princess report for international law is that it is one of the very first detailed inquiries into the national operation of an aspect of the International Health Regulations during the pandemic. It shines a spotlight on the manner in which Australia has sought to give effect to its international law rights and obligations under the Regulations with respect to pratique. While this may normally be seen as a relatively minor matter, the consequences arising from the arrival in Sydney of the Ruby Princess, the granting of pratique, and the disembarkation of COVID-19 infected passengers highlight the importance of these procedures. The ongoing significance of these issues were also shown following the arrival in May 2020 of the Al Kuwait in Fremantle where crew members were infected with COVID-19.
A great deal of international law confers upon states a margin of appreciation as to how rights and duties under treaty are given effect to under municipal law. The Ruby Princess inquiry placed the spotlight on this aspect of Commonwealth-State interaction which is a day-to-day aspect of the Australian federation. In this instance gaps and weaknesses were demonstrated which had significant public health consequences. But they also had international law consequences. As the Commissioner observed:
Australia has obligations under the International Health Regulations…to prevent the spread of disease to another country. … Preventing onward travel … would have limited the spread of COVID-19 within Australia and overseas [11.75].
The Ruby Princess report is a wake-up call for Australia to ensure it has in place more appropriate administrative and inter-departmental procedures in place to receive and assess cruise ships, and all other ships, arriving in Australian ports during the pandemic.