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Did the failure of the Victorian Government to prepare a Hotel Quarantine Plan for Incoming Passengers breach the Government's legal obligations under the Victorian Occupational Health and Safety Act 2004?

Part 2: Key questions
Was the pandemic unprecedented?
Was it reasonably practicable to prepare for the pandemic?

December 2020

This video explains NOT unprecedented in 4 minutes:

Was it ‘reasonable and practicable’ to expect that a pandemic was to occur? – On the evidence the answer is – Yes!
That is: Was the Covid-19 Pandemic ‘Unprecedented’? – No!

Answers to these questions are important – Did the Victorian government:
  • anticipate a pandemic? – Yes
  • develop plans for managing a pandemic? – Yes
  • have prior knowledge of the Covid-19 pandemic – Yes
  • develop specific plans for managing the Covid-19 pandemic? – Yes
  • develop specific plans for managing hotel quarantine as part of the Covid-19 management plans? – NO
The answers to the critical questions are based on publicly available official documents as explained below.

1. Explanation: Pandemic warnings and plans existed pre-Covid

For close to two decades the inevitably of an influenza pandemic has been at the forefront of global and local health warnings and predictions. The only things unknown and unpredicted are when, the specific nature of the pandemic, and the precise source. The generalities of an influenza pandemic were well known and anticipated at government and their health authorities at the global, Australian Federal level and state government level. All levels of government in Australia, including Victoria, have been in preparation for an influenza pandemic.

1.1 World Health Organisation (WHO) – pre-Covid

In 2005 the WHO issued a Checklist for influenza pandemic preparedness planning. The WHO stated that:
  • “Global pandemics have been reported for many hundreds of years. The best documented pandemics occurred in 1918 (H1N1, the Spanish flu), 1957 (H2N2, the Asian flu) and 1968 (H3N2, the Hong Kong flu).”
  • “Human resources are needed to write a plan, and some preventive measures require considerable investments. …. To ensure that decision-makers are willing and able to make difficult choices before and during a pandemic, political and bureaucratic commitments are essential.”
And that a wide range of bodies and persons needed to be involved in the planning so that
  • “Everyone involved should know their role and responsibilities during a pandemic. This should be reflected in the operational plans for each organization.”
Further, that
  • “The response plan should indicate the organization and, if possible, the unit within the organization responsible for the designated response at each phase.”
That the plan should cover social distancing and quarantine to
“Ensure that contact tracing, confinement and quarantine, if proposed, can be implemented both legally and practically. Define criteria for implementation and revocation:
— consider designation of places where persons can be held in quarantine;
— ensure medical care, food supply, social support and psychological assistance for these people;
— ensure adequate transport of persons to these places ….”

1.2 The Australian Government – Pandemic preparation pre-Covid

Based on WHO warnings, the Australian government had developed a plan in conjunction with the states for managing an expected influenza pandemic as early as 2006. In 2007-08 the Auditor-General released a report on the preparations.

The report stated that:
  • “The World Health Organization (WHO) has reported that the world is moving closer to an influenza pandemic” … “but it is not possible to predict when the next pandemic will occur…”
  • There were “whole of government arrangements for an influenza pandemic”
  • The preparedness is laid out in three key documents being “the National Action Plan for Human Influenza Pandemic (the National Action Plan), the Commonwealth Government Action Plan for Human Influenza Pandemic; and the Australian Health Management Plan for Pandemic Influenza.”
  • “The purpose of the contingency plans is to prevent an influenza pandemic arriving in Australia and, if this cannot be prevented, to contain the spread of the virus.”
  • The plans are based on “The WHO Checklist for Influenza Pandemic Preparedness Planning.”
  • “Australia has established national surveillance programs …that target the containment and management of an influenza pandemic…in addition, all State and Territory governments have pandemic plans, either as stand-alone plans or included in general health emergency plans.”
  • The WHO Checklist covered seven areas for pandemic preparedness and included “preventing the spread of the disease in the community.”
In October 2006 Exercise Cumpston was the first test of the Australian health system to manage an influenza pandemic. The main activity involved a flight arriving at an international airport during a pandemic alert. The test was managed by the Australian government in conjunction with all State and Territory governments.

The Auditor’s report further stated that
  • Australia as a signatory to the International Health Regulations has created a legal liability in this respect.
  • The Quarantine Act 1908 governs human and animal quarantine nationally and is complemented by State and Territory quarantine laws.
  • “State and Territory public health units have primary responsibility for contact tracing for infectious diseases.”
In August 2019 the Australian Department of Health issued its updated Australian Health Management Plan for Pandemic Influenza.

1.3 The Victorian government – Pandemic preparation – pre-Covid

The Victorian government was well aware of the inevitability of an influenza pandemic and had detailed plans in place for the management of a pandemic. In October 2014 the Victorian Health Department released the Victorian health management plan for pandemic influenza.

The plan stated
  • “Pandemic influenza should still be fresh in everyone’s mind. In late April 2009 the World Health Organization (WHO) announced the emergence of a novel influenza A Virus.”
  • “…we must be prepared…”
  • “The Victorian Government has developed a number of plans and will lead the states’ response to an influenza pandemic.”
  • The plan “…includes actions that the state government would take to protect public health and safety. The plan concentrates in particular on the actions of the Victorian Department of Health. It is an overarching guide that provides a framework for coordinating actions between federal, state and local government as well as key response partners and stakeholders in Victoria such as private healthcare providers.”
  • “The aim of the Victorian health management plan for pandemic influenza (VHMPPI) is to provide an effective health response framework to minimise transmissibility, morbidity and mortality associated with an influenza pandemic.”
The plan referenced the International Health Regulations stating
  • “These regulations are a legally binding public health treaty administered by WHO.”
The plan referenced the other plans that linked to this plan formally known as the Victorian human influenza pandemic plan (VHIPP). These other plans included The Public health control plan 2012, The Emergency management manual Victoria (EMMV), Fluborderplan and the National pandemic influenza airport border operations plan.

The plan (VHIPP) described the required preparedness and response activities which included
  • “controlling the spread of influenza through various containment strategies, including but not limited to isolation, quarantine, other social distancing measures …”
  • The use of personal protective equipment PPE stating that “…PPE is appropriate in all healthcare settings, including …when advised by the Chief Health Officer, for border health agencies.”
Appendix 4 of the plan covers Infection prevention and control measures stating:
  • “The aim of infection prevention and control measures during an influenza pandemic is to minimise the risk of exposure to the virus, thus reducing transmission, infection and illness. Infection prevention and control measures should be used in a range of settings (healthcare, residential facilities, schools and education and care services and households).”
  • “Preventing transmission and infection during a pandemic will require a package of related measures:
  • individual measures – hand hygiene, respiratory hygiene, cough etiquette and immunisation
  • appropriate personal protective equipment (PPE)
  • organisational and environmental measures – patient placement, flow and segregation, and cleaning.”
  • “The Australian guidelines for the prevention and control of infection in healthcare (NHMRC 2010), as the current evidence-based recommendations for infection prevention and control practices in healthcare settings in Australia, provides the basis for pandemic influenza advice.”
The plan stated that
  • “Health services and primary care should have a stockpile of PPE (four weeks’ supply is recommended).
  • The decision to deploy PPE from the Victorian medical stockpile to healthcare and other settings will be taken by the Chief Health Officer.”
Appendix 5 covered Quarantine and isolation – community settings and at the border. Appendix 5 explains that under the Public Health and Wellbeing Act 2008 and Public Health and Wellbeing Regulations 2009 the Chief Health Officer has the power to order Isolation and quarantine.

2. Covid-19 Pandemic

The emergence of Covid-19 in early 2020 triggered responses from the governments at the global, Australian and Australian state government levels with the updating of pandemic plans specific for Covid-19.

2.1 Declaration – WHO

On the 30 January 2020 the WHO declared Covid-19 a “public health emergency of international concern, WHO’s highest level of alarm’. That is, Covid was declared a pandemic.

On 11 February 2020 the WHO issued ‘Key considerations for repatriation and quarantine of travellers in relation to the outbreak of novel coronavirus 2019-nCOV'. The statement said
“Countries should be prepared for containment, including active surveillance, early detection, isolation and case management, contact tracing and prevention of onward spread of 2019-nCoV infection, and to share full data with WHO. In accordance with their obligations under the Article 43 of the International Health Regulations (2005)…
The statement addressed the issue of quarantine stating that “…the following needs to be considered, in accordance with Article 32 of the IHR.” and referenced:
  • “Infrastructure: … space should be respected not to further enhance potential transmission and the living placement of those quarantined should be recorded for potential follow up in case of illness.
  • Accommodation and supplies: travellers should be provided with adequate food and water, appropriate accommodation including sleeping arrangements and clothing, protection for baggage and other possessions, appropriate medical treatment, means of necessary communication if possible, in a language that they can understand and other appropriate assistance. A medical mask is not required for those who are quarantined. If masks are used, best practices should be followed.
  • Communication: establish appropriate communication channels to avoid panic and to provide appropriate health messaging so those quarantined can seek appropriate care when developing symptoms.
  • Respect and Dignity: travellers should be treated, with respect for their dignity, human rights and fundamental freedoms and minimize any discomfort or distress associated with such measures, including by treating all travellers with courtesy and respect; taking into consideration the gender, sociocultural, ethnic or religious concerns of travellers.
  • Duration: up to 14 days (corresponding with the known incubation period of the virus, according to existing information), may be extended due to a delayed exposure.”
It further stated:
“Health Care Workers: trained personnel should be assigned for the observation and follow up of these passengers in the quarantine facility. These health care workers should be equipped with the basic PPEs and commodities needed to deal with the suspected cases (medical/surgical masks, gowns, gloves, face shields or goggles, hand sanitizers and disinfectants). Additional commodities are needed for surveillance, lab and clinical management of the 2019-nCoV. Additionally, they should be trained on case definitions, infection prevention and control measures, and the initial management of suspected cases to perform the following interventions:
  • Active surveillance: to identify suspected cases;
  • Isolate suspected cases and ensure safe transport: strictly adhere to infection prevention and control (IPC) measures and social distancing procedure to prevent potential spread of the infection to others;
  • Collect laboratory samples: to test for the 2019-nCoV in the national reference laboratory or international laboratories in the absence of the lab testing capacity;
  • Manage cases clinically: Identify ambulances and designated health facilities to refer cases to for the necessary isolation, treatment and follow up. Adhere to strict IPC measures to prevent the spread of the infection among health care workers or other patients;
  • Trace contacts: to identify other potential cases within the quarantine facility, test, isolate and treat as necessary. Extend and adapt quarantine period to correspond to the incubation period of the delayed exposure;
  • Share data: on the number and description of cases with WHO using the WHO reporting forms and in accordance to Article 6 of the IHR.
Other Support Staff: personnel responsible for administrative work and cleaning service should also be trained and properly briefed on signs and symptoms of the disease and provided with appropriate PPEs, as needed.”

2.2 Australian Government – Covid-19 Post pandemic declaration

On 18 February 2020, the Australian Government released Australian Health Sector Emergency Response Plan for Novel Coronavirus (COVID-19).

The plan announced procedures for the management of Covid which included priority to:
“…undertake strategies to minimise the risk of further disease transmission…” that “will involve state and territory governments, the Australian Government and many other health sector parties.” Response stages included ‘minimise transmissions’ such that the activities which should be implemented will be selected by the Australian Health Protection Principal Committee (AHPPC), in consultation with relevant parties and on advice from expert bodies.”
The plan made it clear where powers lay in relation to managing the pandemic and that there were/are a range of legal obligations
State and territory government legislative powers
States and territories have legislative powers that enable them to implement biosecurity arrangements within their borders and that complement Australian Government biosecurity arrangements. They also have a broad range of public health and emergency response powers available under public and emergency legislation for responding to public health emergencies.
International legislative obligations
The International Health Regulations 2005 (IHR) is an international public health treaty that commits signatory countries to take action to prevent, protect against, control and provide a public health response to the international spread of disease. As a signatory, Australia has a range of obligations, including reporting and maintaining certain core capacities at designated points of entry and informing the WHO if any measures implemented interfere with international trade or travel.”
“State and territory governments will maintain IHR core capacities and communicate public health events of national significance to the NFP; support implementation of border measures by providing disease control expertise and health care services to ill travellers;”
“The Australian Government will coordinate national novel coronavirus outbreak measures and allocate available national health resources across the country. It will support the health response in any jurisdiction, through AHPPC to coordinate assistance, if jurisdictional capacity becomes overwhelmed.”
2.2.1 Wuhan evacuees: In early February 2020 the Australian government evacuated Australians from Wuhan in China placing 243 persons into quarantine on Christmas Island

2.3 Victorian Government – Covid-19 Post-pandemic declaration

On 10 March 2020 the Victorian Minister of Health released the Covid-19 Pandemic plan for the Victorian Health Sector.

The Covid-19 plan states:
“Victoria is well prepared for dealing with COVID-19. Victorian health services, hospitals, primary care and emergency services have existing pandemic influenza preparedness arrangements.
The health system undertakes pandemic response exercises and is prepared for the COVID-19 public health emergency.”
That the plan will
“Slow the spread of COVID-19 in Victoria through rapid identification, isolation and cohorting of risk groups.”
“we can expect human-to-human transmission via droplets, direct contact with nasal secretions or contact with objects or materials that carry the virus.”
It advised
“All healthcare providers should use this plan, and further materials provided by DHHS”
“The most effective way to reduce the impact of COVID-19 is to reduce exposure.”
  • “Clear incident management governance protocols for your organisation
  • Protocols for outbreak management in your setting, (if appropriate).
  • Protocols for infection prevention and control procedures in your organisation, including updates and staff education and audits.”
“The primary objective of the containment stage is to actively identify all cases of infection and contain them to prevent broader outbreaks.”
In relation to Quarantine, the Covid-19 plan states:
“Quarantine refers to home isolation of well people who are deemed at risk of COVID-19 due to travel location or contact with a case. As the COVID-19 emergency response has progressed there has been varying requirements for returned travellers to quarantine after being in a high-risk location.”
In relation to PPS the Covid-19 plan states
“Adequate access to supplies of PPE will be critical to protect health professionals as they manage the spread of COVID-19.”
Notably the Victorian Covid-19 plan referred to quarantine only within the context of home quarantine. The plan did not and does not make any comment or reference to hotel quarantine.

2.3.1 Victorian Hotel Quarantine No Plan
In a statement to the Board of Inquiry into the Covid Hotel Quarantine Program the Witness statement of Kym Lee-Anne Peake (DHS.9999.0009.0001), Secretary Victorian Department of Health and Human Services (14 August 2020), the Secretary submitted the following evidence:
13.Question: As at 26 March 2020, what plans, if any, were already in place for a hotel quarantine program in Victoria?
106. Answer: As at 26 March 2020, there were no plans in place for a mandatory hotel quarantine program for returned travellers.

3. Summary observations in relation to pandemic anticipation and preparation

The Victorian government
  • had legal obligations to prepare for an influenza pandemic;
  • anticipated a pandemic;
  • had detailed plans for managing a pandemic; and
  • knew that the Covid-19 pandemic was coming from early February 2020
Plans were
  • subject to the state’s international obligations and modelled on WHO guidelines;
  • co-ordinated and integrated with the Australian government modelling and preparations;
  • updated and made specific to Covid-19 from early March 2020;
  • in place to manage travellers through Melbourne airport to transportation to quarantine locations or hospitals;
  • in place to manage Covid-19 in hospitals and other health settings;
  • in place to manage Covid-19 in aged care and disability support/accommodation settings.
No plans were in place to manage quarantine of travellers either in hotels or any facility run or controlled by the state.

4. Was it reasonable and practicable and should the Victorian government have had detailed plans for the management of hotel quarantine of travellers?

The evidence is that preparation for the management of hotel traveller quarantine was and is a clear and normal expectation and requirement in the management of a pandemic such as Covid.

The use of hotels to quarantine people during a pandemic has been accepted practice internationally for many years. For example, The Hong Kong Department of Health, Centre for Health Protection has had Hotel Quarantine Guidelines and procedures since at least 2007 when it published revised Guidelines on Infection Control and Infection in Hotel Industry (Revised) November 2007.

It was therefore undoubtedly reasonably practicable for those involved in the planning, operation and monitoring of the Victoria Government Hotel Quarantine Program to have had safe systems of work ready and available. Failure to do so warrants prosecution of the Victorian government under the work safety laws.

See these documents from the Hong Kong health authorities

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