SPECIAL COMMISSION OF INQUIRY INTO THE RUBY PRINCESS
SUBMISSIONS ON BEHALF OF
INTERNATIONAL TRANSPORT WORKERS FEDERATION AND AFFILIATE UNIONS
Introduction and background
1. The International Transport Workers’ Federation (ITF) and its affiliate unions in Australia, the Maritime Union of Australia (MUA), the Australian Institute of Marine Powered Engineers (AIMPE) and the Australian Maritime Officers Union (AMOU) make these submissions on behalf of the workers employed in the maritime industry which, in relation to the Ruby Princess, include crew on board the ship, shore based workers on the wharf and Port Authority employees including the pilot.
2. The ITF is an international trade union federation of transport workers’ unions. Its members comprise 670 unions representing over 18 million transport workers from 147 countries.
3. The ITF is party to a Special Agreement with Princess Cruise Lines Limited under which the ITF has industrial representation rights with respect to crew on the Ruby Princess who undertook work in cleaning, food and hospitality, entertainment, ships husbandry (maintenance), navigation and engineering.
4. On the ground in Australia, the MUA represents maritime workers who worked in port authorities in boat services, towage, and wharf activities, including but not limited to, the operation of the gangplanks or passageways that were used for the disembarkation of the passengers from the Ruby Princess, as well as the handling of luggage, food containers, garbage and other cargo from the vessel. The MUA also represents the cutter crews for the pilot which boarded the Ruby Princess as it came into and exited Sydney Harbour.
1 M:12152157_1 HRR 5. The AMOU represents ships officers and pilots (including the pilot which boarded the Ruby Princess as it came into and exited Sydney Harbour) and other technical and administrative staff in the Port and Marine Authorities, as well as, in this case wharf supervisors and deck officers who work offshore.
6. In these submissions, the ITF and its Affiliate Unions will be referred to collectively as the Unions.
7. The Unions will not address all of the issues identified as relevant to the Terms of Reference of the Special Inquiry by the Special Commissioner. Instead the Unions will direct their submissions to those parts of the inquiry relevant to the interests of the Unions and in particular, the lack of consideration given to the health and safety of crew and port-side workers by government officials involved in the disembarking of the Ruby Princess on 19 March 2020 and its immediate aftermath.
NSW Port Authority - pilotage
8. Pilotage is compulsory in every pilotage port.1 A marine pilot may defer pilotage only for reasons related to ‘marine safety’.2
9. The Port Authority of NSW (Port Authority) has a Port Safety Operating Licence issued by the Transport for NSW on behalf of the Minister for Roads, Maritime and Freight under the Ports and Maritime Administration Act 1995 (NSW) (PMA Act). Pursuant to this licence, the Port Authority provides pilotage services.
10. The objectives and functions of the Port Authority are set out in ss. 9 and 10 of the PMA Act. They do not expressly refer to the health and safety of crew on board a vessel, of its pilots or the health of port side workers or the community. However, pursuant to s. 9(c) of the PM Act, one of the objects is to ‘ensure that its port safety functions are carried out properly’. Pursuant to s. 10(2)(b) of the PMA Act, one of the functions of the Port Authority is to exercise the port safety functions for which it is licensed in accordance with its operating licence.
1 Marine Safety Act 1998 (NSW), s 74(1) and (2). 2 Marine Safety Act 1998 (NSW), s 77.
2 M:12152157_1 HRR 11. Further, pursuant to section 24 of the PMA Act, the Minister for Transport and Roads has general responsibility for marine safety, including the “safe operation of recreational and commercial vessels”.
12. The Unions consider that these functions with respect to ‘safety’ may include considerations such as whether the crew are physically and mentally well enough to safely navigate the ship to a wharf, and whether there are any safety implications for crew (e.g. from embarking and/or carrying ill passengers) or for landside workers (if disembarking ill passengers).
13. In any event, the Port Authority is a 'person conducting a business or undertaking’ (PCBU) for the purposes of complying with its duty of care to its workers under the Work Health and Safety Act 2011 (WHS Act) and Work Health and Safety Regulation 2017 (WHS Regulation).
14. The Port Authority is responsible for managing navigation, security and operational safety needs of commercial shipping in Sydney Harbour, Port Botany, Newcastle Harbour, Port Kembla, Eden and Yamba.
15. The Minister appoints Harbour Masters pursuant to s 85 of the Marine Safety Act 1998 (NSW) (MS Act). Pursuant to s 88 of the MSA Act, the Harbour Master of any port may direct and control various items including:
(a) the time and manner in which any vessel may enter or leave the port; and
….
(g) the period of advance notification required for a shipping berth.
16. Pursuant to s 89 of the MS Act, the Harbour Master may give directions:
(a) prohibiting the entry into, or movement out of, the port or any part of the port;
(b) requiring the removal from the port or any part of the port, of any vessel that the harbour master has reasonable cause to believe inter alia is in
3 M:12152157_1 HRR imminent danger of causing serious damage to the marine environment or property of the port.
17. The Vessel Traffic Service (VTS) is a division of the Port Authority approved by the Australian Maritime Safety Authority (AMSA) to provide vessel transfer services safely. Pursuant to s 33 and 34 of Marine Order 64, it is a criminal offence for a master of a vessel not to provide VTS with information or reports requested.
18. The Port Authority is responsible for determining whether a pilot will be sent to a vessel to perform pilotage.
19. In that legislative framework, the decision-making of the Port Authority as to the provision of pilotage does not incorporate any requirement to inquire into or determine whether the New South Wales (or Australian) community must be protected from any biosecurity risks onboard a vessel that is piloted.3
20. As at 19 March 2020, when the Ruby Princess approached Sydney Harbour, the health and safety concerns of the Port Authority were instead limited to those of its own employees, predominantly the pilots performing pilotage but also the port officers. In particular, whether it was safe for those employees to interact with passengers and crew on board the ship. Particular attention was directed to the safety of the pilot as he would be in close contact with the crew on the Bridge, including the Captain, Staff Captain, Navigator, Desk Officer, Helmsman, Lookout (able seaman) and a security guard.4 Each of those officers and crew members themselves would have had numerous interactions with other crew not on the Bridge and with passengers.
3 Exhibit 22, Statement of Emma Fensom, Port Authority, dated 5 May 2020, [17]; Statement of Sarah Marshall, Port Authority 5 May 2020, Exhibit SM1, [24]. 4 Exhibit 26, Statement of Sam Chell, dated 22 April 2020, [12].
4 M:12152157_1 HRR Failure to protect pilot that piloted Ruby Princess on 8 March 2020
21. It is beyond doubt that on 8 March 2020, the ‘Ruby Princess Bridge’ sent an email to the Port Authority declaring that there were ‘NO’ crew members onboard showing signs of coronavirus and there were no ill passengers or crew on board.5
22. However, the information provided through the Maritime Arrivals Reporting System (MARS) was that there were 170 ill persons on board. 6
23. Not only was that inconsistent with the information provided to the Port Authority, it was highly inaccurate. When the Ruby Princess arrived in Port Jackson on the morning of 8 March 2020, NSW Health boarded the vessel and 360 people presented for assessment on the basis that they were exhibiting symptoms of illness. Nine (9) people were tested for coronavirus which were ultimately found to be negative.7
24. Upon receipt of the MARS report, NSW Health had not alerted the Port Authority to the information it had as to the number of persons presenting with symptoms and as such the Port Authority had no information on which to assess the risk in respect of the pilot boarding the vessel.
25. As a result, the pilot who piloted the Ruby Princess on 8 March 2020, James Dargaville, was not warned of any risk and was not instructed to wear PPE. He wore plastic gloves and a mask when boarding the ship and walking to the Bridge (which required him to walk past the crew and passenger accommodation quarters) but took the PPE off when on the Bridge with the Captain, Staff Captain, Navigator, Co-navigator and two seamen.8 Mr Dargaville put on the gloves and mask for the return journey when disembarking the ship.
5 Annexure 10 to Exhibit 22, Statement of Emma Fensom, dated 5 May 2020. See also Statement of Sarah Marshall, Port Authority 5 May 2020, Annexure SM1, [13]. 6 Also Exhibit 23, Statement of Sarah Marshall, Port Authority 5 May 2020, Exhibit SM1, [22]. 7 Exhibit 22, Statement of Emma Fensom, dated 5 May 2020l, [21]. Exhibit 23, Statement of Sarah Marshall, Port Authority 5 May 2020, Exhibit SM1, [14]. 8 Exhibit 95, Statement of James Dargaville, Port Authority, dated 16 April 2020, [9]-[10].
5 M:12152157_1 HRR 26. The lacuna in the system meant that relevant information about the presence of symptomatic passengers resulted in the Port Authority not having the information it needed in order to discharge its WHS and duty of care obligations to Mr Dargaville.
27. The Port Authority conducted an investigation into why the ‘Ruby Princess’ Bridge had provided incorrect information. The excuse given was that there had been a ‘misinterpretation of the question being related only to COVID-19’9. That was not a viable explanation in circumstances where the onboard doctor could not have known whether any passengers had contracted COVID-19 because there were no testing facilities onboard. In any event, having been told that the question was open to such ‘misinterpretation’ the Port Authority took no steps to change the questions it asked of cruise ships. (This is only partly explained by Doug Hanshaw’s evidence that he did not forward the email from Mr Mifsud onto Ms Fensom or Ms Marshall, who had responsibility for developing the COVID-19 protocols for the Port Authority, until 18 March 2020.10 )
28. Further, the Port Authority did not seek a Ministerial Direction under section 87(3) of the Marine Safety Act 1998 (NSW) to strengthen the VTS reporting requirements from cruise ships (or all ships), and to ensure there was sharing of MARS advice from the Department of Agriculture and of health assessments undertaken by NSW Health. It also failed to consult with SafeWork NSW about what steps it could implement to protect its pilots.
29. As such, the Port Authority did not take appropriate steps to ensure it had sufficient information to warn its staff of any risks of COVID-19 on board a cruise ship in the future.
9 Exhibit 45, Statement of Doug Hanshaw, Port Authority, dated 20 May 2020, [28]. 10 Exhibit 45, Statement of Doug Hansahw, Port Authority, dated 20 May 2020, [29].
6 M:12152157_1 HRR Precautions to protect crew members throughout voyage 8 March - 19 March
Public Health Information to crew working on cruises departing from New South Wales
30. Professor Ferson is the Director of the South East Sydney Local Health District (SESLHD). It conducts the Cruise Ship Surveillance Program. Professor Ferson gave evidence that this program provided public health information to current passengers, and if appropriate, to incoming passengers when outbreaks occur on the ships.11 He was not aware of what steps, if any, this program had taken to provide public health information to crew members who worked on cruise ships entering or departing New South Wales waters.12
31. The Cruise Ship Surveillance Program has established links with cruise ship companies, shipping agents and government agency personnel but not the Unions.
32. Professor Ferson stated there was no reason for this and it would be of benefit to get the Unions’ perspective on WHS concerns which overlapped with public health concerns, although he was not sure what the mechanism would be.13
33. Professor Ferson also gave evidence that the SESLHD sent weekly emails to cruise ship doctors, and cruise company public health personnel, containing updates on NSW related public health information. However, there was no provision of any of that information to the Unions so that they could inform and alert crew to any issues of concern.14
34. The failure in the Program was that it presupposed that by providing health information to the cruise ship owners, that information would be passed on to the workers – when, in fact, there was no evidence that this occurred on the Ruby Princess or generally.
11 Exhibit 38, Statement of Mark Ferson, dated 29 May 2020, [13]. 12 Transcript 15 June 2020, p 1289, l 1-11. 13 Transcript 15 June 2020, p 1298, l 36-46 and p 1299. 14 Exhibit 38, Statement of Mark Ferson, dated 29 May 2020, [14].
7 M:12152157_1 HRR Were adequate WHS precautions, including PPE and training on social distancing put in place for crew on board the ship?
35. The evidence of Peter Little, Senior Vice President Guest Experiences, P&O Cruises was that the Ruby Princess was owned and operated by Princess Cruise Lines under a time charter to Carnival Plc who conducted the revenue activities onboard the vessel and that Princess Cruise Lines supplied the crew.15 The Ruby Princess is registered in Bermuda and Princess Cruise Lines Ltd is a company based in California.
36. The WHS Act does not have extraterritorial operation. As such, when the Ruby Princess was outside the territorial waters of New South Wales, the obligations under that legislation did not apply. However, obligations to ensure the work, health and safety of the crew on board the vessel applied by virtue of one of the following:
36.1 The Maritime Labour Convention 2006 given effect to by the Navigation Act 2012 (Cth) and associated Marine Orders, in particular Article IV(1) which provides that ‘every seafarer has the right to a safe and secure workplace that complies with safety standards’ and Article IV(4), which provides that ‘every seafarer has a right to health protection, medical care, welfare measures and other forms of social protection’; 36.2 Merchant Shipping (Health and Safety At Work) Regulations 2004 (Bermuda); 36.3 Merchant Shipping (Seafarers’ Employment Regulations 2013 (Bermuda); 36.4 Possibly the Occupational Safety and Health Act of 1973 (California); and/or 36.5 Seafarers Employment Agreements signed individually by each seafarer member (which incorporate seafarer collective agreements, in this case being collective bargaining agreements between Princess Cruise Lines Ltd and the Italian Federation of Transport Workers and Italian Transport Federation).16
37. The evidence from the Hotel Manager, Mr Verwaal that, whilst at sea, Carnival was operating at ‘elevated health levels’, meaning intensified cleaning practices,17
15 Transcript 26 June 2020, p 1960 – 1961. 16 Those Collective Agreement require Princess Cruise Lines Limited, the employer, to provide safe workplaces, as well as other safety measures. 17 See also: Exhibit 63, Statement of Percy Anderson, dated 24 April 2020, [11]; Exhibit 74, Statement of Andrew Saulys, dated 14 May 2020,[12], [14]; Exhibit 79, Statement of Lynda De Lamotte, dated 20 May 2020,
8 M:12152157_1 HRR practising social distancing, no more self-service buffets18 and different operating manners for the restaurants.19 Further, he stated that passengers were advised to use their own toilets and sanitise their hands.20
38. However, there were no changes to entertainment such as live shows, movie theatres and night clubs on board the ship.21
39. The evidence from a selection of the passengers onboard the Ruby Princess between 8 and 19 March 2020 was that:
39.1 Passengers were required to fill in a health clearance form prior to boarding, asking if they had travelled from a high risk country, been in contact with a confirmed or suspected case of COVID-19 and if they had any temperature or flu like symptoms but there was no temperature checks;22 39.2 There were areas on the ship that were particularly crowded, such as: 39.2.1 theatres where there was evening entertainment, with two screenings per night;23 39.2.2 the atrium and other bars and restaurants onboard;24
[31]; Exhibit 86, Statement of Paul Reid, dated 15 May 2020, [21]; Exhibit 90, Statement of Kristy Ann McMahon, dated 7 May 2020, [17]. 18 Although passengers, for example, Ms Kristy Ann McMahon give evidence that the buffet was not self- service only for the last 4 or so days of the cruise and from this time passengers could not get beverage re-fills either: Exhibit 90, Statement of Kristy McMahon, dated 7 May 2020 [17]. 19 Mr Charles Verwaal, Transcript 11 May 2020, p 122, l 13-28 and p 123, l 33-36. Although the evidence of passengers on this is mixed and it appears the intensified cleaning may have only occurred after the vessel was turned back to Sydney. See for example: Exhibit 71, Statement of Jill Whittemore, dated 28 April 2020, [16] and Exhibit 76, Statement of Josephine Roope, dated 6 May 2020, [36] cf Exhibit 83, Statement of Sharon Schofield, dated 12 May 2020, [11]. 20 Exhibit 64, Statement of Graeme Lake, dated 12 May 2020, [22], [27]; Exhibit 67, Statement of Wendy Williams dated 11 May 2020, [7]; Exhibit 71, Statement of Jill Whittemore, dated 28 April 2020, [11], [14]; Exhibit 76, Statement of Ms Josephine Roope, dated 6 May 2020, [30]; Exhibit 74, Statement of Andrew Saulys, dated 14 May 2020, [15]; Exhibit 79, Statement of Lynda De Lamotte, dated 20 May 2020, [19], [24]; Statement of Lynette Jones, dated 21 April 2020, [15]; Exhibit 80, Statement of Lynette Jones, dated 21 April 2020, [21]; Exhibit 83, Statement of Sharon Schofield, dated 12 May 2020, [9]; Exhibit 86, Statement of Paul Reid, dated 15 May 2020, [19]. 21 Mr Charles Verwaal, Transcript 11 May 2020, p 128, l 38-42 and p 129. 22 Exhibit 89, Statement of Laraine Fenton, dated 5 May 2020, [6]; Exhibit 90, Statement of Kristy Ann McMahon dated 7 May 2020, [8]. 23 Exhibit 60, Statement of Mr Anthony Londero, dated 16 April 2020, [19]; Exhibit 65, Statement of David Walters, dated 25 April 2020, [19]. 24 Exhibit 80, Statement of Lynette Jones, dated 21 April 2020, [12]; Mr Wright: Transcript 22 June 2020, p 1706. Mr and Mrs Saulys: Transcript 22 June 2020, p 1740.
9 M:12152157_1 HRR 39.2.3 the places where safety talks were given with approximately 500 people ‘crowded in like sardines’;25 and 39.2.4 the Princess Theatre, where a couple of hundred passengers waited until tours were ready;26 39.2.5 a huge St Patrick’s day party on 17 March 2020 in one of the lounges with approximately 400 passengers;27 and 39.2.6 a farewell party on the last night where staff were dancing shoulder to shoulder with passengers;28 39.3 There were no instructions to passengers to social distance at the safety drill held before departing Sydney or otherwise,29 although once the vessel was on its way home Ms Kavanagh noticed crew were keeping their distance from passengers;30 39.4 Passengers observed crew wearing PPE only occasionally, for example: 39.4.1 other than when staff were serving food, Mr Londero did not see staff wearing any PPE31 39.4.2 Mr Anderson reported that crew members serving food were never wearing masks;32 39.4.3 Ms Roope observed that staff cleaning the plates and removing the reusable material napkins at the Horizons restaurant were not using gloves,33 39.4.4 some staff were wearing masks in the medical centre on 18 March 2020;34
25 Exhibit 64, Statement of Graeme Lake, dated 12 May 2020, [21]. 26 Exhibit 71, Statement of Jill Whittemore, dated 28 April 2020, [14]. 27 Exhibit 71, Statement of Jill Whittemore, dated 28 April 2020, [22] and Transcript 22 June 2020, p 1696, l 4- 20. 28 Exhibit 79, Statement of Lynda De Lamotte, dated 20 May 2020, [20] and Transcript 22 June 2020, p 1797. 29 Exhibit 89, Statement of Laraine Fenton, dated 5 May 2020, [14]. Exhibit 60, Statement of Anthony Londero, dated 16 April 2020, [23]. 30 Exhibit 60, Statement of Mr Anthony Londero, dated 16 April 2020, [21]. Exhibit 71, Statement of Jill Whittemore, dated 28 April 2020, [22]; Exhibit 84, Statement of Ann Kavanagh, dated 28 April 2020, [22]. 31 Exhibit 60, Statement of Mr Londero, dated 16 April 2020,[23]. 32 Transcript 19 June 2020, p 1623, l 12-15. 33 Exhibit 76, Statement of Ms Josephine Roope, dated 16 April 2020, [30]. 34 Exhibit 76, Statement of Ms Josephine Roope dated 16 April 2020, [20].
10 M:12152157_1 HRR 39.4.5 Ms DeLamotte observed a female person wearing full hazmat gear on the deck of the Ruby Princess when boarding on 8 March 2020 but other crew were dressed in a uniform with gloves on without a hazmat suit;35 39.4.6 Mr Londero did not notice any Ruby Princess staff overseeing the security screening process on 12, 13, 14 or 15 March 200 wearing PPE such as masks or gloves;36 39.4.7 the medical centre receptionist and doctor were wearing face masks on 16 March 2020;37 39.5 Crew were not necessarily aware if passengers decided to self-quarantine if they had respiratory symptoms and/or a fever;38 39.6 It was not announced to passengers that there were suspected cases of COVID- 19 onboard at any time or that there were passengers self-isolating39and some passengers with a diagnosis of influenza were not told to self-isolate;40 39.7 Passengers suspected of having COVID-19 were not in any kind of isolation in the medical centre and other passengers could wander in and out to see them.41
40. There is no evidence about what directions (if any) were given to crew to protect them from possible infection of COVID-19. Mr Mifsud was specifically asked what protocols were in place for crew but he did not know.42
41. Given the sporadic and inconsistent manner in which PPE was being worn, the Special Commission could not be satisfied on the evidence that there was any sufficient
35 Exhibit 79, Statement of Ms Lynda De Lamotte, dated 20 May 2020, [6]. 36 Exhibit 60, Statement of Mr Anthony Londero, dated 16 April 2020, [14], [16], [17], [19]. 37Exhibit 86, Statement of Paul Reid, dated 15 May 2020, [8]. 38 Exhibit 67, Statement of Wendy Williams, dated 11 May 2020, [17]. 39 Exhibit 76, Statement of Josephine Roope, dated 6 May 2020, [35]; Exhibit 83, Statement of Sharon Schofield, dated 12 May 2020, [16]; Exhibit 84, Statement of Ann Kavanagh, dated 28 April 2020, [21]; Exhibit 90, Statement of Kristy Ann McMahon, dated 7 May 2020, [15], [20] and [30]. 40 Exhibit 80, Statement of Lynette Jones, dated 21 April 2020, [19] and Transcript 23 June 2020, p 1834; Exhibit 86, Statement of Paul Reid, dated 15 May 2020, [12]. C.f Mr Walters: Transcript 19 June 2020, p 1658, l 42-45. 41 Exhibit 76, Statement of Josephine Roope, dated 6 May 2020, [26]. 42 Transcript 11 May 2020, p 887-894.
11 M:12152157_1 HRR directions to crew about the use of PPE. A similar conclusion would be reached in relation to social distancing and hygiene.
42. Mr Little’s statement annexes an internal Incident Command Sitrep dated 16 March 2020 which records that ‘crew need to self-isolate on ship for 14 days. Do not need to isolate in individual cabins. The ship is compared to someone’s home’.43 This was described as a ramshackle way to prevent the risk of infection of COVID-19 among the crew.44 The evidence of Dr Tarling, Chief Medical Officer for Carnival, is that this advice did not come from him or his team.45
43. Accordingly, it appears that throughout the voyage, crew remained in their cabins, some of which contained four bunk beds to a room, and mixed freely amongst one another and with the passengers. The crew did so, apparently with no idea that some passengers on board were exhibiting COVID-19 symptoms. As such, they were deprived of relevant information to make informed decisions about their health and safety. This was an unacceptable situation, particularly for those crew who had any co-morbidities which may have heightened the risk of a poorer outcome in the event that they contracted the virus.
44. The Unions contend that there should have been a clear protocol put in place for crew which:
44.1 directed crew to observe social distancing (both with other crew and with passengers); 44.2 directed crew to wear appropriate PPE when handling food, drinks or when the crew had to be in closer proximity with others; 44.3 directed higher grade PPE for cleaning duties especially of bathrooms, toilets and cabins; 44.4 directed crew to use hygiene protocols of regular handwashing (20 seconds in length) and regular use of had sanitiser.
43 P 130 to the Exhibits to Mr Little’s statement dated 26 June 2020. 44 Transcript 26 June 2020, p 2039-2040. 45 Statement of Dr Tarling dated 29 June 2020, [75].
12 M:12152157_1 HRR 45. Further, the Unions contend that all crew had a right to be informed that there were suspect COVID-19 cases on board so that the crew could take steps to protect their own safety.
Port Authority’s grant of pilotage on 18/19 March 2020
46. From 9 March 2020, NSW Health agreed to alert the Port Authority if there was a vessel entering NSW waters that was classified at medium or high risk.46 Putting aside the inherent flaws in the classification system which led to this grading of ‘high’, ‘medium’ or ‘low, this decision was flawed as a ‘low’ risk ship could still have carried a risk of contagion to pilots.
47. The Port Authority does not have access to the MARS through the Department of Agriculture47 and was thus reliant on NSW Health for information.
48. Despite attempts by the Port Authority to co-ordinate with the Australian Border Force, the contact there, Alice Stanley, did not respond.48
49. On 13 March 2020, the Port Authority’s Operations Working Guidelines for COVID-19 was updated to include the ‘Response Scenario Matrix’. The Guidelines also contemplated that staff would have to board a vessel with a suspected or confirmed case of COVID-19 and that this would be ‘guided by the Scenario Matrix and the PPE Guidelines’.49
50. The Scenario Matrix was deficient in a number of respects, namely:
50.1 It did not ‘marry up’ to the biosecurity questions asked of vessels. For example, scenario 6 is triggered if ‘the ship declares they have crew and/or passengers with COVID 19 symptoms before vessel is piloted and after the 14 day period’;
46Exhibit 23, Statement of Sarah Marshall, Port Authority 5 May 2020, Exhibit SM1, [23]; Exhibit 22, Statement of Emma Fensom, Port Authority, dated 5 May 2020, [33]. 47Exhibit 23, Statement of Sarah Marshall, Port Authority 5 May 2020, Exhibit SM1, [25];Exhibit 22, Statement of Emma Fensom, Port Authority, dated 5 May 2020, [34]. 48 Exhibit 23, Statement of Sarah Marshall, Port Authority 5 May 2020, Exhibit SM1, [21]. 49 Exhibit 22, Statement of Emma Fensom, Port Authority, dated 5 May 2020, [31].
13 M:12152157_1 HRR 50.2 The biosecurity questions ask if any passengers or crew are ‘ill’ (which could include having a sprained wrist) but inconsistently asked if any crew are showing symptoms of COVID-19; 50.3 The trigger for determining whether a vessel fell within a particular scenario was the vessel’s answers to the biosecurity questions despite the Port Authority’s then recent experience on 8 March 2020 which illustrated that cruise ships, in that case the Ruby Princess, can provide false information and in circumstances where the MUA had warned the Port Authority about relying on ships self-reports of ill health on 29 January 2020. 50 50.4 The ultimate decision rested with the Port Authority on the basis of ‘feedback’ from NSW Health and the Department of Agriculture, Water and the Environment but in reality, the Port Authority was reliant on these authorities to make risk assessments which were directed to biosecurity risks to the community and not the risks posed to staff of the Port Authority, such as the pilot;. 50.5 The Scenario Matrix had been drafted without consideration of the type of ‘feedback’ it was likely to receive from NSW Heath and the Department of Agriculture, Water and the Environment and how to consider granting pilotage on a case by case basis. 50.6 Despite Scenario 6 requiring ‘feedback’ from NSW Health, the only contact provided was an 1-800 number to ‘ensure awareness’. It did not provide a 24 hour contact to the relevant contact within the NSW Health.
51. Professor Ferson, the Director of the Public Health Unit of the SESLHD, confirmed he did not know about the Port Authority Scenario Matrix when providing his advice to the Port Authority.51
52. Further, it is apparent that the Scenario Matrix was of little or no assistance on 18 March 2020 when Port Authority staff were determining what steps to take to adequately protect their staff from the risk of exposure to COVID-19. Mr Stephen
50 Email from Paul Garret, MUA to Cameron Butchart, Port Authority (Copy to Phillip Holliday), dated 29 January 2020 (Annexure A to these submissions). See also the MUA’s submission to the Select Committee on COVID-19, dated 15 June 2020 (Annexure B to these submissions). 51 Transcript of 15 June 2020, p 1301, l 17-20.
14 M:12152157_1 HRR Howieson, the Operator at the Vessel Traffic Services, had to ‘look through his emails to find it’ when Mr Butchart asked for Mr Franz Odermatt’s telephone number.52 This begs the question of whether Mr Howieson and Mr Butchart were adequately trained in how to implement the Scenario Matrix. There is also considerable doubt as to whether Mr Butchart referred to the Scenario Matrix at all that evening despite his evidence to the contrary.53 It is noted that Mr Howieson received the Scenario Matrix just 3 days prior to his shift starting on 17 March 2020 and he received no training on how to use it.54
53. While Mr Butchart telephoned Franz Odermatt, Department of Agriculture, Water and Environment for ‘feedback’ as the Scenario Matrix dictates, he was unable to reach him55 and did not wait to hear back from him before making a decision to re-book the Ruby Princess for pilotage. Further, he made the decision to re-book the vessel without waiting for feedback from Emma Fensom in the Crisis Management Team.56
54. Ms Fensom in her discussions with Mr Butchart relied on advice from NSW Health that the Ruby Princess was ‘low risk’ and cleared it for pilotage and disembarking without really understanding what that classification meant precisely in terms of risk to the pilot. She also relied on advice from the Ship’s doctor and Senior Director Port Operations (Asia Pacific) for Carnival, Mr Mifsud, that the ambulances that had been called were not for COVID-19 related issues even though Mr Butchart had information that there were 120 sick passengers on board the vessel and that samples were being landed for testing.57
55. Mr Howieson from VTS spoke to the ship’s doctor, Dr. Von Watzdorf who informed him that the passengers requiring an ambulance had a respiratory tract infection for which there was no diagnosis and would need to be investigated once they got to hospital. The fact that she did not say ‘they are suspect COVID-19 cases’ was immaterial. They had symptoms consistent with COVID-19. Mr Howieson took no
52 Exhibit 25, Statement of Stephen Howieson, Port Authority, dated 30 April 2020, [38]. 53 Exhibit 24, Statement of Mr Butchart, Port Authority, dated 5 May 2020, Annexure A, [26]. 54 Exhibit 94, Second Statement of Stephen Howieson, Port Authority, dated 16 June 2020, [7]. 55 Exhibit 24, Statement of Mr Butchart, Port Authority, dated 5 May 2020, Annexure A, [25]. 56 Exhibit 25, Statement of Stephen Howieson, Port Authority, dated 30 April 2020, [78]. 57 Mr Butchart: Transcript 8 May 2020, p 652 – 662.
15 M:12152157_1 HRR steps to confirm whether or not the doctor considered that they were ‘suspect COVID- 19 cases’.58
56. Despite the information that was available to the Port Authority, it was not sufficiently informed at all about:
56.1 the possibility of COVID-19 cases on board the vessel; 56.2 whether any symptomatic persons were passengers or crew, if crew, which crew. This being an important consideration given that the contact to be made by the pilot was with crew, not passengers.
57. Ms Fensom’s questioning of Mr Mifsud lacked any depth.59 Put simply, she failed to ask questions that would provide meaningful information on which to make a decision to grant pilotage. Similarly, Mr Howieson’s questioning of the ship’s doctor was superficial, particularly in light of the fact that the information provided by the ship was ambiguous and did not sufficiently alert the Port Authority to the risks on board.
58. It is open for the Special Commission to reach a conclusion on the nature of the information provided by Mr Mifsud to Ms Fensom. Ms Fensom claims that Mr Mifsud said “Health has not said the ambulances are for COVID. Health have not said that there is COVID on board”.60 Mr Mifsud’s evidence is that he does not recall making these statements.61 In any event, Ms Fensom ought never have accepted Mr Mifsud’s statements without questioning how NSW Health could have known there was not COVID-19 on board the vessel when there was no testing available on board.62
59. This exchange evidences an inherent conflict of interest at play between the ship’s desire to obtain pilotage and therefore provide information that might downplay the level of risk on board the vessel and the Port Authority’s interest in obtaining reliable and accurate information so that it can best protect its staff.
58 Exhibit 70: Audio recording of conversation between Howieson and Dr Isle Von Watzdorf on 18 March 2020. 59 Transcript 8 May 2020, p 749. 60 Exhibit 22, Statement of Emma Fensom, Port Authority, dated 5 May 2020, [45]. 61 Transcript 11 May 2020, p 873 – 874. 62 Transcript 8 May 2020, p 746.
16 M:12152157_1 HRR 60. Further, there was a bizarre and misplaced element of distrust of the NSW Ambulance63 (which turned out to have the most accurate information) and Home Affairs personnel.64 This belies a lack of confidence in the system where the focus should be on obtaining proper and reliable information which itself is dependent upon having access to the correct decision-makers (and the correct contact details for them). It also speaks to a lack of co-ordination and co-operation between these authorities and clear lines of responsibility and functions.
61. Indeed, NSW Ambulance did not even have the telephone number for the Port Authority and instead called the Marina Area Command.65 This resulted in Sergeant Hollands and conducting enquiries with Border Force and NSW Health.66
62. Despite, Mr Butchart being in receipt of information that Mr Dilonardo was from NSW Ambulance and his information had been provided from a known shipping agent, ‘Bibi’, Mr Butchart failed to take heed of this information.
63. Further, told Mr Butchart to contact NSW Health but Mr Butchart did not have contact details for NSW Health.67
64. also did not have the number of NSW Health. He was told by the Duty Operations Inspector that the SEOC was business hours only and that he could “Google” NSW Health’s contact details.68
65. Mr Dilonardo from NSW Ambulance gave an incorrect number to the Commonwealth coronavirus hotline by mistake,69 which passed on to Mr Butchart.70 When called this number he was informed it was for advice and reporting only.71 As
63 Exhibit 24, Statement of Mr Butchart, Port Authority, dated 5 May 2020, Annexure A, [31]. 64 Exhibit 24, Statement of Mr Butchart, Port Authority, dated 5 May 2020, Annexure A, [44]. 65 Exhibit 39, Statement of Mr Travis Butler, Marine Area Command, dated 4 April 2020, [5]. 66 Exhibit 39, Statement of Mr Travis Butler, Marine Area Command, dated 4 April 2020, [7]. 67 Exhibit 40, Statement of dated 9 April 2020, [9]. 68 Exhibit 40, Statement of dated 9 April 2020, [10]. 69 Exhibit 41, Statement of dated 6 May 2020, [4]-[5]. 70 Exhibit 40, Statement of dated 9 April 2020, [11]-[12]. 71 Exhibit 40, Statement of dated 9 April 2020, [14].
17 M:12152157_1 HRR Sergeant Hollands observes in his statement, there was miscommunication between agencies72 (which is quite an understatement) and that NSW Police had (inappropriately) become a conduit for messages.73
66. Despite being in possession of information both from NSW Ambulance ‘that the 2 passengers have possibly got COVID-19 and that there are 120 people in quarantine on board and samples were being landed for testing” Mr Butchart spent a considerable amount of time working out whether the call was ‘bogus’ and elected to wait until 1:06am to email the pilot, Mr Sam Chell to warn him of this risk and advise him to wear PPE.74
67. Shortly afterwards, Mr Butchart emailed [email protected] to ‘make sure he knows about this’. Mr Howieson gave evidence that by that stage the pilot had already boarded but he had spoken to him earlier about the contradictory reports75 The recording of his earlier phone conversation with Mr Chell does not include a caution for him to wear PPE.76 Mr Chell gave evidence that he did not read Mr Butchart’s email until after he finished his shift.77
68. Once the Port Authority was on notice that there was a possibility of COVID-19, it needed to take immediate steps to warn the pilot and instruct him to wear PPE. Instead of doing this immediately and as a priority, it was almost an after-thought, after valuable time was spent interrogating persons from other government departments and the vessel about the veracity of the information received. Further, none of its inquiries were directed at ascertaining whether the Bridge crew had had close contact with these passengers or any of the other ‘ill’ passengers or crew or what PPE the Bridge crew had been directed to wear.
69. Despite the lack of any adequate information or direction by the Port Authority, Mr Chell took it upon himself to wear PPE - mask and gloves78 but he had no knowledge
72 Exhibit 97, Statement of Sergeant Hollands, dated 12 April 2020, [11]. 73 Exhibit 97, Statement of Sergeant Hollands, dated 12 April 2020, [14]. 74 Exhibit 24, Statement of Cameron Butchart, dated 5 May 2020, [50] and Annexure E. 75 Exhibit 25, Statement of Mr Howieson, dated 30 April 2020, [91]. 76 Exhibit 25, Statement of Mr Howieson, dated 30 April 2020, [64]. 77 Exhibit 26, Statement of Mr Sam Chell, dated 22 April 2020, [17]. 78 Exhibit 26, Statement of Sam Chell, dated 22 April 2020, [12].
18 M:12152157_1 HRR of the risks on board and should have been warned as it would have led him to have taken further care to avoid touching surfaces or otherwise. Further, Mr Chell gave evidence that on 19 March 2020, he removed his gloves when he reached the Bridge and met staff including the Navigator, Deck Officer, Helmsman, Look-out, Ship’s Commodore and deck officers.79 At that stage, there was no way of knowing how much contact these crew members had had with infected passengers.
70. Mr Kelly, the marine pilot, was involved in the departure of the Ruby Princess on 19 March 2020 at approximately 4pm.80 He gave evidence that whilst he was aware there had been some concerns regarding health of passengers and crew, he was of the opinion that everything was ‘OK’ as they had let everyone off’.81 This demonstrates that he too was not given any adequate information properly notifying him that swabs had been sent to laboratories to be tested for COVID-19 and that there had been suspect cases onboard the vessel.
71. Mr Kelly gave evidence that he did not physically touch any crew members and kept a distance of 2 metres from them at all times but he removed his PPE when he reached the Bridge.82 He then put his PPE back on when he left the Bridge and while he moved through the crew alleyway. He then removed his PPE when he reached the Port Authority vessel. He placed the PPE into a clothing bin and disinfected his hands with sanitiser.83
72. Professor Ferson agreed that his advice to Ms Marshall to ‘not worry if the pilot was wearing his PPE’ would have been different if he had known that the PPE was taken off while the pilot was on the Bridge and interacting with crew members.84
73. Any response by the Port Authority on 18-19 March 2020 should have been guided by:
73.1 the inherent risks onboard the cruise ship for COVID-19 to be circulating given the large number of persons onboard co-mingling;
79 Exhibit 26, Statement of Sam Chell, dated 22 April 2020, [12]. 80 Exhibit 46, Statement of Michael Kelly, dated 26 May 2020, [7]. 81 Exhibit 46, Statement of Michael Kelly, dated 26 May 2020, [9]. 82 Exhibit 46, Statement of Michael Kelly, dated 26 May 2020, [10]. 83 Exhibit 46, Statement of Michael Kelly, dated 26 May 2020, [17]. 84 Transcript of 15 June 2020, p 1301 – 1302.
19 M:12152157_1 HRR 73.2 international passengers and crew were onboard 73.3 the voyage involved international travel; and 73.4 there was no possible way to know if a person had COVID-19 until after the swabs had been tested (which the Port Authority was well aware of as it had been consulted about a possible solution of collecting swabs prior to cruise ships landing).85
74. Further, the fact that the shipping agents Bibi Tokovic and Valerie Burrows were not contactable in the early hours of the morning appears to be a contravention of s 47(3) of the Biosecurity Act 2015 (Cth). As such, the Port Authority who was required to make the critical decision about pilotage in the early hours of 19 March 2020 was left without the necessary information.
75. The information received by decision-makers was garbled and unreliable. Most of it second-hand or third-hand hearsay. It involved a poor interpretation of medical information which neither the messengers nor recipients fully comprehended. For example, gave evidence that Mr Butchart told him that the ‘CEO of Carnival Australia had told him that the five tests from New Zealand were negative and the two people sick are as a result of a septic ear infection’.86 This was inaccurate and not pertinent information. While it is correct that the five tests that had been done in New Zealand had returned a negative result, there will still swabs that remained to be tested and the two persons that needed an ambulance did not have ear infections.
76. The CDNA National Guidelines for Public Health Units, 13 March 2020 on p 16 states that:
‘if there’s a suspect or confirmed case onboard that requires transfer to a hospital, the Commonwealth Biosecurity Officer will notify the Port Authority to provide access for medical transport’.
77. If the Port Authority had received its information about a suspected case of COVID-19 onboard the ship from the Commonwealth Biosecurity Officer or an authorised
85 Exhibit 22, Statement of Emma Fensom, dated 5 May 2020, [9]. 86 Exhibit 40, Statement of dated 9 April 2020, [13].
20 M:12152157_1 HRR channel of communication, it would have avoided some of the confusion that resulted on 18/19 March 2020.
NSW Health
Guidelines and communications to the Cruise Industry
78. The “19 February 2020 Draft Cruise Ship COVID-19 Assessment Procedure for Ports of First Entry into Australia” (19 February Procedure) was developed to guide the NSW Health Expert Panel in assessing the risk of COVID-19 on board vessels entering New South Wales.
79. The 19 February Procedure is replete with examples where the only consideration was passengers and there was no reference to crew. The evidence of doctors who developed these guidelines and used them to make risk assessments of vessels for the presence of COVID-19 onboard ships was that there was no reason why the crew had been overlooked in those parts of the Procedure,87 they just were.
80. In addition, words such as ‘home quarantine’ and ‘self-isolation’ were used for both passengers and crew without consideration for the specific financial, accommodation and employment situation of crew.88
81. Furthermore, while it was pertinent for NSW Health to understand whether passengers were informed to report to the medical centre if they had symptoms and that this assessment be free of charge, there was no attention given to whether crew (many of whom came from India and the Philippines) had been likewise informed, in a manner that they understood, of the same requirement. For example, a general announcement over the PA system addressed to both passengers and crew89 is an insufficient method for communicating with workers who could have readily been advised in face to face staff meetings by their supervisors. The evidence from the ARD log shows many more crew reporting with symptoms after the vessel docked. One of
87 Dr Tobin: Transcript 10 June 2020, pp 1144- 1156; Professor Ferson: Transcript 15 June 2020, p 1288-1302; Dr Gupta: Transcript 16 June 2020, pp 1409-1415. 88 Dr Tobin: Transcript 10 June 2020, pp 1144- 1156; Professor Ferson: Transcript 15 June 2020, p 1288-1302; Dr Gupta: Transcript 16 June 2020, pp 1409-1415. 89 Statement of Dr Tarling, dated 29 June 2020, [70].
21 M:12152157_1 HRR the possible reasons for this is that they may not have been informed to report earlier if they had symptoms.
82. The “22 February 2020 Enhanced COVID-19 Procedures for the Cruise Line Industry” (Enhanced Procedures), a guidance document that was provided to cruise ship operators, sometimes refers to ‘passengers and crew’ and sometimes just ‘passengers’ - for no apparent reason. For example, the procedures to identify and manage cases of respiratory infection require passengers who may be infectious to isolate but not crew members. Dr Tobin gave evidence that there was no reason why crew ought not be included in that guidance and that it was a ‘mistake’ that crew were not included.90
83. These discrepancies are not just typographical errors but indicate a lack of discrete attention being paid to the specific situation of crew when developing guidelines about the risk assessment and steps to take following a risk assessment, particularly the steps taken to protect the crew during the disembarkation process and for remaining crew once the passengers had disembarked on 19 March 2020.
Risk Assessment by NSW Health
84. The Chief Human Biosecurity Officer (CHBO) was a member of the NSW Health Expert Panel who conducted the risk assessment of the Ruby Princess on 18 March 2020. However, he did not consider himself acting in his capacity as the CHBO when he as on the cruise ship risk assessment panel.91
85. There is no evidence of a written recommendation being made by the Expert Health Panel to the CHBO or of the CHBO providing written advice to the Commonwealth Biosecurity Officer from the Department of Agriculture, Water and Environment that pratique should be granted. The members of the Expert Panel understood what pratique meant and that their decision was involved in pratique but no one took
90 Transcript 10 June 2020, p 1148. 91 Exhibit 28, Statement of Sean Tobin, dated 29 May 2020, [10].
22 M:12152157_1 HRR responsibility for advising the Department of Agriculture, Water and Environment of the decision.92
86. The Risk Assessment conducted by the NSW Health Expert Panel of the Ruby Princess on 18 March 2020 – when it assessed the ship at “low risk” of COVID-19 being onboard was flawed:
86.1 The risk assessment form had not been updated to include as one of the epidemiological criteria - travel from any country in the last 14 days and remained limited to travel from China, Iran, South Korea or Italy.93 Had the risk assessment form been updated, all passengers and crew onboard the ship would have fulfilled the epidemiological criteria rather than “0”. 86.2 The risk assessment process did not take account of possible asymptomatic or pre-symptomatic cases of COVID-19 onboard the Ruby Princess on 18 March 2020 because the CDNA guidelines case definition at the time did not include this;94 86.3 The risk assessment placed focus on whether there was an outbreak of influenza-like-illness (ILI) (1%) which is only a subset of respiratory symptoms consistent with COVID-19;95 86.4 The threshold of 1% ILI being a trigger for concern that there was COVID-19 circulating onboard the ship was entirely misplaced given the transmissibility of the virus;96 86.5 The Expert Panel did not place any significance on the fact that hundreds of passengers had travelled from the United States prior to embarking on the Ruby Princess on 8 March 2020;97 86.6 The information in the ARD log was not up to date and in fact the number of persons with respiratory symptoms was increasing;98
92 Transcript of 10 June 2020, p 1136-1137. See also: Transcript of 18 March 2020, p 1560. 93 Annexure 50 to Exhibit 29 being the completed Risk Assessment Form for the Ruby Princess on 18 March 2020. 94 Transcript of 10 June 2020, p 1204. 95 Transcript of 10 June 2020, p 1195. 96 Transcript 18 June 2020, p1562. 97 Transcript of 10 June 2020, p 1140. 98 Transcript of 10 June 2020, p 1162.
23 M:12152157_1 HRR 87. Further, 29 swabs onboard the Ruby Princess to test for all passengers and crew that presented with symptoms consistent with COVID-19 during the voyage was insufficient.99 While Dr Tarling gave evidence that this was a reasonable number in light of the expected number of passengers and crew demonstrating ILI symptoms,100 this does not take into account that symptoms consistent with COVID-19 extend to all symptoms of ARI and are not limited to ILI symptoms. The number of persons with ARI symptoms was in the hundreds on both the voyage concluding on 8 March 2020 and the voyage concluding on 19 March 2020.
88. NSW Health took no meaningful steps to ensure cruise ships complied with its requirement that 2 swabs be taken from anyone with respiratory symptoms except to try to supplement these if and when it boarded a cruise ship.101 However, this did not occur on the Ruby Princess on 19 March 2020 because it was deemed low risk and as a result, no medical team boarded the vessel.
Department of Agriculture, Water and Environment
89. It is apparent that the questions in the MARS declaration in operation between 16-19 March 2020 were also not updated to capture the 10 March 2020 change to the CDNA Guidelines definition of a suspect case of COVID-19. That is apparent because the questions were still aimed at travel to China and/or Iran and/or Republic of Korea and/or Italy rather than all international travel. Therefore, when the Ruby Princess did not provide an affirmative answer to any of the COVID-19 questions, an automatic notification to the Maritime National Coordination Centre (MNCC) was not triggered at that point.102
90. The Maritime Travellers Processing Committee (MTPC) granted permission to the Ruby Princess to arrive and depart at Australian ports in accordance with s 58 of the Customs Act 1901 (Cth) and s 247 of the Biosecurity Act 2015 (Cth).
99 For example, see the Risk Assessment form for 18 March for Ruby Princess showing only 10 swabs available for COVID-19 testing: Annexure 50 to Exhibit 29 when the number of available swabs should have been at least 100: Transcript 16 June 2020, pp 1405 - 1406. 100 Statement of Dr Tarling, dated 29 June 2020, [67]-[68]. 101 Transcript 16 June 2020, p 1398; Transcript of 17 June 2020, p 1435-1443. 102 Commonwealth Voluntary Statement, 12 June 2020, [93]-[95].
24 M:12152157_1 HRR 91. When Mr Murray (Border Force Supervisor, Shipping Operations) spoke to Ms Valerie Burrows (Sydney Port Agent Manager, Carnival Australia), she advised him that NSW Health had deemed the ship a ‘low rating’ and advised that it could disembark at the requested time.103
92. What ensued was a further relay of second-hand messages. It does not appear anyone from NSW Health spoke to a Commonwealth officer with respect to the Ruby Princess on the evening of 18 March 2020.104
93. The communication line for granting pratique was not clear. The first contact between Mr Odermatt from the Department of Agriculture and Ms Ressler from NSW Health was around 7:31am on 19 March 2020 when Ms Ressler assured him that the vessel had been assessed as ‘low risk’ and not to be concerned about the swabs being tested for COVID-19 and pratique was granted shortly afterwards.105
Lack of precautions taken to protect crew members and onshore workers when passengers disembarked on 19 March 2020
Crew members assisting passengers were not appropriately socially distanced and wearing PPE
94. The expert opinion of Professor Kelleher and Professor Grulich is that ‘if it was possible for disembarkation to be staged and gradual, to allow social distancing, this may have reduced the transmission between passengers and between passengers and crew’.106
95. The NSW Health Media Release dated 12 March 2020 had advised all public members who had travelled overseas to attempt to keep 1.5 metres between yourself and others.107
96. Despite the guidance on social distancing in the 12 March 2020 NSW Health Media Release, no advice regarding disembarkation procedures was provided to the cruise
103 Commonwealth Voluntary Statement, 12 June 2020, [122]-[126]. 104 Commonwealth Voluntary Statement, [98]. 105 Commonwealth Voluntary Statement, 12 June 2020, [79] and [97], [165] - [169]. 106 Exhibit 99, Expert Report of Professor Kelleher and Professor Grulich, dated 17 June 2020, p 8. 107 Tab 6, page 24 of the annexures to Exhibit 57, Dr McAnulty’s statement dated 15 June 2020.
25 M:12152157_1 HRR line industry, including Princess Cruise Lines Limited and the management on the Ruby Princess on 18 March 2020.
97. The evidence of Dr McAnulty, Executive Director of Health Protection NSW Health, was that it would have been ‘desirable’ for the passengers to be socially distanced when disembarking and that this should have been supervised by cruise ship employees and Commonwealth and State officers but he was not aware of any steps by NSW Health to enforce this on 19 March 2020.108
98. All of the passengers were allowed to disembark on 19 March 2020 without any assessment from NSW Health including the 120 passengers onboard who had reported to the medical centre and the 11 patients that were “suspected COVID-19” cases, although they were disembarked last.109 Ninety-eight crew members also disembarked after the passengers on 19 March 2020.110
99. There is evidence that passengers disembarked in groups of either ‘between 50 and 20’111 or ‘about 100’ leaving every 5-10 minutes.112 Passengers estimated there were ‘one hundred’ or a ‘couple of hundred’ other passengers in the same area when disembarking.113
100. Only those passengers who had reported respiratory symptoms were provided with sanitiser and masks on the morning of arrival in Sydney114and not all passengers were wearing masks during disembarkation.115 The crew were all lined up and waving as the passengers walked past them (within 30-40 cm) and down the gangplank,116crew
108 Transcript 18 June 2020, pp 1512 - 1514. 109 Statement of Christopher Townsend, NSWA, 29 April 2020, [21]-[22]. 110Mr Charles Verwaal, Hotel Manager, Ruby Princess, Transcript 23 April 2020, p 145, line 1 - 28 111 Mr Charles Verwaal, Hotel Manager, Ruby Princess, Transcript 23 April 2020, p 136, l 38-42. 112 Mr Paul Mifsud, Senior Director Port Operations (Asia Pacific) for Carnival), Transcript 11 May 2020, p 881, l 23-44; Statement of Percy Anderson, dated 24 April 2020, [12]; 112 Exhibit 71, Statement of Jill Whittemore, dated 28 April 2020, [24]. 113 Exhibit 63, Statement of Percy Anderson, dated 24 April 2020, [12]; Exhibit 71, Statement of Jill Whittemore, dated 28 April 2020, [24]. 114 Exhibit 80, Statement of Lynette Jones, dated 21 April 2020, [22]; Exhibit 86, Statement of Paul Reid, dated 15 May 2020, [13]. 115 Exhibit 79, Statement of Lynda De Lamotte, dated 20 May 2020, [31]; Exhibit 83, Statement of Sharon Schofield, dated 12 May 2020, [17]. 116 Exhibit 63, Statement of Percy Anderson, dated 24 April 2020, [12]; Exhibit 71, Statement of Jill Whittemore, dated 28 April 2020, [25]; Exhibit 90, Statement of Kristy Ann McMahon, dated 7 May 2020, [19].Ms Jones: Transcript 23 June 2020, p 1824, l 1-10.
26 M:12152157_1 HRR helping passengers were not wearing gloves;117 crew openly connected with passengers118 and at least one crew member hugged a passenger while she was disembarking.119
101. When the paramedics from the NSW Ambulance arrived to transfer the two passengers suspected of COVID-19 to the Royal Prince Alfred Hospital, staff on board the ship did not have full PPE on and the staff did not appear concerned.120
Onshore workers were not informed about the risk of COVID-19 and could not take precautions themselves
102. When questioned about what steps were taken to put the employers of onshore workers on notice of the potential risks of COVID-19 from the passengers and crew disembarking in groups of 100, 5-10 minutes apart on 19 March 2020, Mr Mifsud, Senior Director Port Operations (Asia Pacific) for Carnival replied that there was ‘no direct contact’ but that the risk of any COVID-19 cases would all get reported via the Ship’s doctor to Agriculture and NSW Health.121
103. There is no evidence before this Special Inquiry of any steps taken by either the Department of Agriculture, Water and the Environment or NSW Health to alert the employers of portside workers (such as the towage company, Engage Marine, the mooring company, Ausport Marine and the bunkering company, Inco Ships, or the employees involved in stevedoring functions such as baggage handling) of the risk of COVID-19 amongst the passengers and crew onboard the Ruby Princess on 19 March 2020.
104. Julie Taylor, Duty Manager, Cruise Operations for the Port Authority, is the person responsible for ensuring that the Overseas Passenger Terminal (OPT) is in good working order, fit for purpose and safe for customers and stakeholders.122 Ms Taylor
117 Exhibit 79, Statement of Lynda De Lamotte, dated 20 May 2020, [31]. 118 Mr Reid: Transcript 23 June 2020, p 1884-1885. 119 Exhibit 79, Statement of Lynda De Lamotte, dated 20 May 2020, [24]. 120 Statement of Andrew Bibby, NSWA, 24 April 2020, [16]. 121 Transcript 11 May 2020, p 891, line 11-26. 122 Exhibit 43, Statement of Julie Taylor, Port Authority, dated 13 May 2020, [4].
27 M:12152157_1 HRR arrived at the Overseas Passenger Terminal at 5:30am on 19 March 2020. Her evidence was that:
104.1 she was unaware any passengers had been in isolation;123 104.2 Carnival Plc employees, Bibi Tokovik and Valerie Burrows were reluctant to inform her there had been passengers in isolation and that swabs had been taken to be tested for COVID-19. They told Ms Taylor that there was ‘no reason they would normally let her know this information’ which Ms Taylor understood to be a reference to there being other reporting channels for such information that did not include Duty Managers;124 104.3 Ms Taylor was wrongly informed that the test results were “all clear” which she passed on to Mr Rybanic.125 104.4 Ms Taylor did not give evidence that she was wearing PPE on 19 March 2020.
105. It is evident that neither the Port Authority, NSW Health, Dept of Agriculture or any other government entity took any steps to put Ms Taylor on notice of the potential for COVID-19 cases among the passengers and crew.
106. Professor Ferson informed Mr Rybanic that none of his staff needed to quarantine because they did not have face to face contact for longer than 15 minutes.126 However, disembarkation took approximately 3.5 hours.127 A passenger, Mr Annesley, gave evidence to the Commission that there was a group of about 600 -800 people at the Overseas Passenger Terminal (OPT) on the morning of 19 March 2020 when he went to collect his mother-in-law.128 None of the people in this group were wearing masks129 and they appeared to be waiting for transport.130 The passengers were in the OPT waiting for transport to arrive and it is likely this time exceeded 15 minutes for some if not a majority of these passengers.
123 Exhibit 43, Statement of Julie Talyor, Port Authority, dated 13 May 2020, [60]. 124 Exhibit 43, Statement of Julie Taylor, Port Authority, dated 13 May 2020, [63] –[64]. 125 Annexure 17 to Exhibit 43, Statement of Julie Taylor, Port Authority, dated 13 May 2020. 126 Exhibit 21 Statement of Robert Rybanic, Port Authority, dated 21 April 2020, [24]. 127 Exhibit 43, Statement of Julie Talyor, Port Authority, dated 13 May 2020, [54]. 128 Transcript 22 June 2020, p 1724. 129 Transcript 22 June 2020, p 1725. 130 Transcript 22 June 2020, p 1733.
28 M:12152157_1 HRR 107. This evidence clearly demonstrates that there needs to be more prompt and clear reporting to employers of portside workers and the Unions as to the risk of COVID-19 among passengers and crew disembarking from vessels so that WHS Act obligations can be properly met. It goes without saying that in the absence of knowing about a risk, the employer of the waterside workers could not have taken the necessary steps to ensure the safety of their employees – such as directing them as to distancing, protocols, and PPE.
Decision to keep crew members on board the ship after the approximately 2400 passengers and 98 crew members had disembarked on 19 March 2020
108. By 12pm on 20 March 2020, NSW Health was aware that 2 passengers and 1 crew member, Mr Marbiog, had tested positive to COVID-19. A decision was made to keep the approximately 1000 crew members onboard the ship, where they remained for around one month before half of them were repatriated on 21 April 2020 and the remainder set sail on the Ruby Princess to its next port, Manila, where it is still docked.
109. By 23 April 2020, 203 crew members had tested positive to COVID-19.131
110. On 27 March 2020, Greg Hunt, Minister for Health, enacted the Biosecurity (Human Biosecurity Emergency) (Human Coronavirus with Pandemic Potential) (Emergency Requirements) Determination 2020 (Cth) which, subject to limited exemptions, required all cruise ships leave Australian waters as soon as practicable.
111. On 28 March 2020, the Public Health (COVID-19 Maritime Quarantine) Order 2020 (NSW) directed that a person who arrived in New South Wales on a vessel must not disembark from the vessel unless the person is authorised to do so by the Commissioner of Police or is required to do so because of an emergency. The Commissioner of Police was required to ‘have regard to’ any advice of the Chief Health Officer. On disembarking, the person was required to immediately go to a quarantine facility or go into medical treatment. This order effectively placed decisions regarding the health and safety of the remaining crew members onboard the Ruby Princess in
131 Exhibit 57, Statement of Dr McAnulty, dated 15 June 2020, [117] –[120].
29 M:12152157_1 HRR the hands of the NSW Police Commissioner – who had no medical expertise and no familiarity with maritime procedures and processes.
112. The Public Health Act 2010 applies to vessels within the territorial waters of the State, however, this situation whereby crew who may be ill remaining on-board a cruise ship had not been adequately considered by NSW Health officials prior to it occurring and their involvement in daily teleconferences with management of the ship did not prevent the spread of COVID-19 among the crew.
Insufficient consideration given to the situation of crew members by NSW Health and Commonwealth Department of Health procedures
113. The draft “16 February 2020 Cruise Ship Screening Procedure for Ports of First Entry into Australia”132 describes as a scenario ‘where there is a respiratory outbreak and the swabs test positive to COVID-19, the passengers and crew are to be placed in home quarantine for 14 days’.
114. However, no consideration was given to how crew were to be placed in ‘home quarantine’. Very few crew members on the Ruby Princess were Australian residents and that is usually the case on most of the cruise ships that come to Australia – they are mainly overseas residents.133
115. Dr Tobin gave evidence that ‘home quarantine’ could be similar to home and consisted of various options, such as a hotel, and could include remaining on the vessel if there was more room onboard the ship once the passengers had disembarked.134
116. The “19 February 2020 Draft Cruise Ship COVID-19 Assessment Procedure for Ports of First Entry into Australia”135 contains examples directed only to ‘passengers’ and there are no references to the crew.136 It uses phrases such as ‘isolation’ and ‘home quarantine’ without providing any guidance as to how that would work in practice for
132 Tab 10 to Exhibit 29. 133 Transcript 10 June 2020, p 1146-1147. 134 Transcript 10 June 2020, p 1145. 135 Tabs 18 and 20 to Exhibit 29. 136 See for example Transcript 15 June 2020, pp 1292, 1295, 1296; Transcript 16 June 2020, p 1409-1410; Transcript 18 June 2020, p 1535.
30 M:12152157_1 HRR crew members, many of whom are from developing countries and have rights to repatriation. 137 The repatriation rights arise under the Seafarers Employment Agreements138 and also ss 5 and 6 of the Merchant Shipping (Repatriation) Regulations 2013 (Bermuda).
117. Some of the doctors consulted about the draft procedure believed this to include remaining onboard the ship where others considered this to mean off the ship. Dr Gupta agreed that ‘there could have been more specific consideration given to the position of crew members disembarking, either because of being a positive case or being a possible positive case or simply disembarking’.139
118. The “Enhanced COVID-19 Procedures for the Cruise Line Industry dated 3 March 2020”140 (on page 3) sets out scenarios for when ‘COVID-19 testing is recommended’ and ‘If COVID-19 testing is positive’. The term ‘traveller’ is used to encompass both passengers and crew.141 Dr Tobin gave evidence that he understood there would be more challenges the ship would have to address for crew isolation than passengers but it was left to the ship to work out the best way to enforce guidance on isolation.142 While a representative from the Cruise Line Industry Association (CLIA) was consulted; he was not aware that any union had been consulted during the course of preparing this guidance on the situation of crew members.143
119. The “Enhanced COVID-19 Procedures for the Cruise Line Industry dated 9 March 2020” also omit the word crew in various passages144 and also use the word ‘traveller’ to refer to both passenger and crew in scenarios where COVID-19 testing is recommended and COVID-19 testing is positive without further consideration of the specific circumstances of crew.145
137 Transcript 15 June 2020, p 1294; Transcript 16 June 2020, p 1412. 138 Referred to in paragraph 37.5 above. 139 Transcript 16 June 2020, p 1410 – p 1411. 140 Tab 30 to Exhibit 29. 141 Transcript 10 June 2020, p 1150, l 30- 47. 142 Transcript 10 June 2020, p 1151, l 1-10. 143 Transcript 10 June 2020, p 1151, l 15-21. 144 Transcript 15 June 2020, p 1298, l 14-20. 145 Transcript 15 June 2020, p 1298,
31 M:12152157_1 HRR 120. Procedures for managing confirmed cases of COVID-19 in passengers and crew set out in the “26 February 2020 draft policy” was not finalised at the date of the Ruby Princess’ docking in Sydney on 19 March 2020 because it was awaiting ‘whole of government advice’ about accommodation options for relocating passengers and crew.146 In an earlier draft, Dr Hess had raised concerns about what would happen to crew in such situations but it was not known whether these concerns were followed up.147 Similarly, the COVID-19 Response – Cruise Ships Screening Procedure included a comment from Ms Ressler ‘need guidance for management of crew’ and Professor Ferson was not aware if this comment was ever followed up148 and there are further examples where reference to the crew is omitted by error on page 13 where it states that ‘symptomatic passengers who need to travel to reach home may do so, however, ensure they have a supply of masks and hand gels to use’.149
121. When developing these procedures, Dr Gupta was alive to the need to seek operational advice about logistics such as isolation, transport, accommodation, isolation packs, food, welfare and single accommodation and acknowledged that she did not consider consulting the ITF or the MUA for advice about these issues.150
122. The lack of consistent attention to crew throughout these procedures, either by omitting them where they ought be included or not giving them explicit attention where their circumstances differed, is apparent in reviewing these procedures and guidelines.
123. The Unions contend that there should have been more explicit attention to the specific circumstances of crew and the risk of COVID-19 to them when developing these procedures.
Decision regarding keeping the crew on the ship
124. Professor Ferson agreed with the Special Commissioner that there was no specific attention given in the drafting of the NSW procedures to the aftermath of
146 Tab 57 to Exhibit 29, p 3 and Transcript 10 June 2020, p 1154. 147 Transcript of 16 June 2020, p 1414. 148 Transcript of 15 June 2020, p 1297, l 43-46. 149 Transcript of 15 June 2020, p 1298, l 1-10. 150 Transcript of 16 June 2020, pp 1412 - 1413.
32 M:12152157_1 HRR disembarkation of passengers, when crew would in all likelihood remain on board unless removed.151
125. The National Protocol For Managing Novel Coronavirus Disease (COVID-19) Risk from Cruise Ships was developed without consultation with the Unions.
126. Initial drafts were provided to Professor Ferson and it did not occur to him during his review of them to ask for a specific section within the Protocol for dealing with the case where crew were to remain on board the vessel.152
127. The Information Sharing Forum which is referred to on page 11 to share information in a timely manner and promote consultation with stakeholders included representatives of the affected cruise ship but not any unions including the Unions in these proceedings. Dr Tobin was not aware of any reason for this.153
128. The Enhanced COVID-19 Procedures for the Cruise Line Industry dated 9 March 2020154(on page 3) provide guidance to cruise ship operators about what will happen if a ‘traveller’ (which is understood to refer to both passengers and crew)155 is a confirmed as a COVID-19 case. It states they will be hospitalised in isolation. This did not occur for Mr Marbiog who tested positive on 20 March 2020 and it is not clear when the other crew that tested positive were eventually hospitalised. It also states that that ‘NSW Health will identify suitable accommodation for all travellers identified as close contacts to undergo their period of quarantine. It is expected that this will happen onshore’.
129. Dr McAnulty was peripherally involved with advice given to management of the Ruby Princess about the crew. He stated that ‘medical advice from the Ruby Princess was that it was in the best interests of the crew for them to remain on board as the passengers had left and there was much more space for them to be able to isolate effectively and that Princess Cruises was following the American CDC Guidelines for
151 Transcript 15 June 2020, p 1293, l 46-47 and p 1294. 152 Transcript 15 June 2020, p 19 - 26. 153 Transcript 10 June 2020, p 1153, l 27 to 32. 154 Tab 44 to Exhibit 29. 155 Transcript 15 June 2020, p 1298.
33 M:12152157_1 HRR management of COVID-19 on ships’.156 He did not know if there were discussion about removing Mr Marbiog, the crew member who had tested positive on 20 March 2020, from the ship.157
130. Professor Ferson gave evidence that he was involved in a teleconference with officers of Carnival Plc on 20 March 2020 about the management of the crew onboard the ship.158 He understood that crew were to be placed in individual cabins159 but did not know what consideration, if any, was given to disembarking crew who were exhibiting symptoms to ensure their safety and to protect other crew from the risk of infection.160 The Cruise Ship Surveillance Program of SESLHD ceased having any involvement after 20 March 2020.161
131. Dr Selvey, who was involved in a teleconference with either Mr Little or Dr Tarling on 20 March 2020, gave evidence that during this discussion, Carnival Plc informed her that it was ‘their preference to keep all their crew, including the crew member who had tested positive, on board the ship and to manage the outbreak according to the United States Centre for Disease Control Plan for Management of COVID-19 on a cruise ship’. When asked if NSW Health had provided Princess Cruises with any alternative accommodation options to consider when it made that decision, Dr Selvey stated that ‘a request was not made of New South Wales Health’.162 No advice was provided to Princess Cruises to remove Mr Marbiog and Dr Selvey could not recall if advice was provided to Princess Cruises about how to quarantine Mr Marbiog onboard the vessel.163
132. Unfortunately, there was no consultation with the Unions that were working in the interest of the crew on behalf of the ITF..
156 Transcript 18 June 2020, pp 1587-1588. 157 Transcript 18 June 2020, p 1591. 158 Transcript of 15 June 2020, p1300, l 7-12. 159 Transcript of 15 June 2020, p 1297. 160 Transcript of 15 June 2020, p 1297, l 10-14. 161 Transcript of 15 June 2020, p 1300, l 26-29. 162 Transcript 29 June 2020, p 2102. 163 Transcript 29 June 2020, p 2103 – 2104.
34 M:12152157_1 HRR 133. Dr McAnulty did not know if NSW Health provided advice on cleaning of the ship.164 Dr Selvey gave evidence that NSW Health only provided advice to Princess Cruises about cleaning the vessel ‘some days’ after the positive test results were known on 20 March.165 Professor Ferson understood that crew were to be placed in individual cabins.166
Testing crew for COVID -19 and Contact tracing efforts
134. All crew onboard the Ruby Princess were deemed ‘close contacts’.167 However, NSW Health did not advise Princess Cruises to implement a regime of testing because Princess Cruises had informed NSW Health that it would treat any crew member with symptoms as being a case of COVID-19’.168 It is noted that tests commenced from 29 March 2020 and continued throughout April but the grounds for selecting crew for testing is not clear.
135. The Unions submit that all crew members should have been tested for COVID-19 as soon as it was known that Mr Marbiog had tested positive on 20 March 2020.
136. Dr McAnulty gave evidence of the considerable contact tracing efforts that were made with respect to passengers of the Ruby Princess between 8-19 March 2020. However, despite being the author of the report, and its heading on page 5 stating ‘contact tracing for passengers and crew’, there is no mention of any efforts to contact trace or give information about the positive COVID-19 results to the 98 crew that disembarked on 19 March. When asked whether this had occurred, Dr McAnulty stated that he did not know.169
137. Page 6 of the draft NSW Health Report on the Ruby Princess Cruise of 8 to 19 March 2020,170states that once it was notified of the 3 positive test results, it ‘immediately informed Carnival and obtained from them their passenger manifest with contact
164 Transcript 18 June 2020, p 1591. 165 Transcript 29 June 2020, p 2103- 2104. 166 Transcript of 15 June 2020, p 1297. 167 Dr Selvey: Transcript 29 June 2020, p 2102. 168 Dr Selvey: Transcript 29 June 2020, p 2103 169 Transcript 18 June 2020, p 1592. 170 Tab 57 to Exhibit 29.
35 M:12152157_1 HRR details for all passengers, and advised them to contact all of their crew about the need for self-isolation and to monitor for symptoms’.
138. Dr Tobin gave evidence that he was not sure why this approach was taken but it could have been related to how quickly both passengers and crew could have been notified.171 When questioned by the Special Commissioner about whether it would be left to an employer to notify its employees of a potential outbreak in analogous situations where the employer may be considered to have committed an actionable wrong against its employees, Dr Tobin stated that this might be one way if NSW Health wanted the persons concerned to take immediate action and NSW Health might do follow up communications.172
139. Dr Selvey was not aware of the reason why it was left to Carnival Plc to contact the crew, particularly the 98 crew that had disembarked on 19 March 2020. She was also not aware of any steps taken by NSW Health to follow up with Carnival Plc about its communications with the crew.173
140. That decision-making was unacceptable in circumstances where it is not known whether the disembarking crew remained employees of Princess Cruise Lines Limited, thus rendering those employees no longer the responsibility of Princes Cruise Lines Limited.
Role of SafeWork NSW and Australian Maritime Safety Authority
141. The Unions contend that the limited involvement of NSW Health during this period was a wholly inadequate response.
142. Further, there is no evidence that either SafeWork NSW or the AMSA was involved or asked to be involved in monitoring and regulating the health and safety of crew onboard the ship while docked in Port Kembla until its departure on 23 April 2020.
143. SafeWork NSW is responsible for administering the WHS Act and AMSA is responsible for seafarer health and safety issues on prescribed vessels engaged in trade on
171 Transcript 10 June 2020, p 1154-1155. 172 Transcript 10 June 2020, p 1155, l 32-45. 173 Transcript 29 June 2020, p 2102 – 2102.
36 M:12152157_1 HRR international or interstate voyages. It inspects vessels, creates domestic safety programs, and processes complaints under the Maritime Labour Convention 2006.174
144. By way of Memorandum of Understanding between Safe Work NSW and AMSA, AMSA is to lead investigations involving ship’s crew and SafeWork NSW is to take the lead in incidents involving personnel working on New South Wales wharves.175
145. While the Ruby Princess was docked within the territorial waters of New South Wales, it is arguable that Princess Cruises Lines Ltd was a PCBU for the purposes of s 5 of the WHS Act. As such it had a duty to ‘ensure, so far as is reasonably practicable, that the health and safety of other persons is not put at risk from work carried out as part of the conduct of the business or undertaking’: s19(2) of the WHS Act. Further, it had an obligation to consult with the workers who are to carry out work for the business or who are likely to be affected by a health or safety matter: s 47 WHS of the Act. Consultation includes sharing relevant information with the workers, giving them a reasonable opportunity to express their views and to contribute to the decision making process, taking into account the workers’ views and advising them of the outcome of the consultation process in a timely manner: s 48 of the WHS Act. Consultation is required, inter alia, when identifying hazards and assessing risks to health and safety from the work and making decisions about ways to eliminate or minimise those risks: s 49 of the WHS Act.
146. Furthermore, as set out above, Article IV(1) of the Maritime Labour Convention provides that ‘every seafarer has the right to a safe and secure workplace that complies with safety standards’ and Article IV(4) of the Maritime Labour Convention provides that ‘every seafarer has a right to health protection, medical care, welfare measures and other forms of social protection’. Regulation 5.2.1 of the Maritime Labour Convention sets out the procedure for inspections by authorities for the purpose of reviewing compliance with the requirements of the Maritime Labour Convention including rights to health, safety and onboard medical care.
174 See https://www.amsa.gov.au/vessels-operators/seafarer-safety (viewed 8 July 2020). See also the functions of AMSA set out in s 6 and 7 of the Australian Safety and Maritime Authority Act 1990 (Cth). 175 Schedule 2, Class A on page 11 of the Memorandum of Understanding between Safe Work NSW and AMSA.
37 M:12152157_1 HRR 147. Regulation 5.1.4 of the Maritime Labour Convention (Inspection and Enforcement) provides for the relevant regulator to have in place a system of inspection and for enforcement. Regulation 5.2 is about enabling the regulators in each nation to implement its responsibilities under the Convention under a system of international cooperation for the implementation and enforcement of the Convention standards on foreign ships.
148. In that context, Regulation 5.2.1 provided that AMSA (the regulator in Australia) to undertake ship inspection for the purpose of reviewing compliance with the requirements of the Convention (including seafarers’ rights) relating to the conditions of seafarers including health and safety and On-board medical care.
149. Pursuant to Regulation 5.1.4, AMSA was able to board the Ruby Princess if it held the belief that the working and living conditions did not conform to the requirements of the Convention.
150. There is little doubt that AMSA should have had a heightened concern about COVID- 19 risk to the health and safety of the crew
151. Neither Work Safe NSW nor AMSA took appropriate steps, in the context of the heightened risks to the health and safety of crew from COVID-19, to ensure the Ruby Princess was a safe workplace nor to ensure that crew had adequate medical care arising from COVID-19.
RECOMMENDATIONS
152. The Unions submit that the evidence demonstrates a systemic failure by government and companies involved in the cruise industry to manage the risk of COVID-19 infection among crew and onshore workers in the cruise ship industry in New South Wales. The Unions consider that there has been scant regard given to the situation of crew members, who comprised one third of the persons onboard the vessel, when developing procedures that critically affected their health and safety and a total failure to consult with the relevant Unions about such measures, despite both NSW Health
38 M:12152157_1 HRR and the Commonwealth Department of Health consulting with the CLIA about such measures.
153. The Unions consider that the following recommendations should be made.
Decision-Making
(1) That the NSW Government propose to the Commonwealth its preparedness to work with the Commonwealth to reform Australia’s biosecurity arrangements by:
a. amending the Commonwealth Maritime Arrivals Reporting System (MARS), the NSW Health Pre Arrival Risk Assessment and Acute Respiratory Diseases (ADR) Log reports, and the PANSW Biosecurity Declaration to provide clear instructions to ships’ masters on the quality and detail of reporting, that must contain co-signing by the chief onboard officer responsible for crew and passenger health;
b. ensuring there is a common and highly precautionary threshold standard used by NSW Health to determine risk of community transmission of a communicable disease;
c. substantially increasing penalties for false or misleading or inadequate human biosecurity information provision by ships masters and cruise line companies;
d. establishing a ship monitoring and audit system to ensure the ongoing integrity and veracity of ship human biosecurity reporting to NSW Health;
e. requiring that the state agencies responsible for human biosecurity health assessments of crew and passengers be mandated to undertake comprehensive onboard health assessment of crew and passengers in circumstances where the World Health Organisation or Australian biosecurity officials have declared an outbreak of a communicable disease, before any other onshore workers are permitted to board a ship and before approval is given for ships to disembark crew and or passengers; and
39 M:12152157_1 HRR f. requiring that all biosecurity, immigration, customs and marine agencies develop and implement, and make public, appropriate interagency communication protocols that ensures full disclosure of ship reporting under MARS to other agencies including SafeWork NSW and AMSA, and build those protocols into risk management systems.
Establishment of an NSW international cruise shipping commission (2) The establishment of an international cruise shipping commission which would provide a framework to coordinate the operation and regulation of international cruise ships when interfacing with NSW ports.
The objective would be to ensure that NSW maximises the economic and social benefits from cruise shipping, a vital component of the state’s economic security, and to ensure the cruise shipping can sustain its social licence to operate in NSW following the COVID-19 pandemic that had a major impact on the sector.
The commission would also be responsible for ensuring there is an appropriate interface and clearly defined responsibilities and procedures within and between the many agencies that have oversight of Australian laws impacting on international cruise shipping.
Such a commission would also provide for the cruise line companies, and their representatives, like the Cruise Lines International Association (CLIA) and port agents, and the workforce, represented by their labour unions, to partner with government in ensuring the industry can rebuild brands and consumer confidence and adopt better corporate governance, public health and work health and safety practices that will deliver a better and safer cruise experience for both passengers and crew.
The commission would be responsible for overseeing the coordination and efficient operation and interaction of each of the NSW agencies and its stakeholders that interface with cruise shipping in Australia, covering:
40 M:12152157_1 HRR a. NSW Government support for the future development and growth of a safe and prosperous international cruise ship industry that uses NSW ports and contributes to the NSW economy; b. Public health standards for passengers, ships’ crew, the shoreside workforce that interface with cruise ships and the wider NSW community;
c. Ship safety, including biosecurity (including ship pollution derived from IMO Conventions); and human biosecurity and the interaction between marine laws and biosecurity laws;
d. Work health and safety (WHS) and welfare of ships’ crew and port workers (derived from ILO Conventions) and including the interface with public health and human biosecurity laws and procedures;
e. Labour standards and modern slavery (derived from the ILO Core Labour Conventions and the Maritime Labour Convention);
f. Seafarer rights including representational and ship and workforce access rights (derived from ILO and IMO Conventions);
g. Ship crew change processes and procedures;
h. Border security, customs, immigration, taxation and crimes at sea;
i. The interface with domestic shipping and ports, and service providers (including port agents) to cruise ships in NSW waters;
j. Training and instruction of public agency officials and cruise industry staff that are responsible for administering laws and procedures.
k. One of the first tasks for the commission should be to review and report on:
- The ways that the failures of the WHS system applying to cruise ships and associated regulatory arrangements revealed in the Ruby Princess case could be reformed and made fit for purpose, with a view to improving the health impacts of crew interaction with passengers.
41 M:12152157_1 HRR - Improvements in cruise ship operator public health practices onboard cruise ships.
- The processes and procedures surrounding public health reporting and assessment standards, pratique and the interface with harbourmaster functions, including the quality of authorisations of statutory appointments and monitoring of those authorisations to ensure the integrity of statutory intent.
- Interagency communication and communication protocols.
- Ways that ships’ crew can be appropriately represented and accessed by labour unions and crew welfare organisations whilst in NSW ports.
It is our view that the cruise shipping commission be a tripartite body that is coordinated by Transport for NSW and include representatives from key government agencies like NSW Health, the Port Authority of NSW, SafeWork NSW, the cruise industry and maritime labour unions, including the ITF.
Given the large number of agencies with a direct interest, it may be appropriate that the commission be advised by an industry reference group comprising representatives of all government agencies, including Commonwealth agencies like the Australian Maritime Safety Authority (AMSA), Department of Health, Department of Home Affairs (Australian Border Force) and the Department of Agriculture, Water and the Environment.
(3) When collecting human biosecurity information from cruise ships, the relevant government authorities should stipulate that the cruise ship operator has announced to crew that they must report any relevant symptoms to the medical centre and must take steps to ensure this information is given to crew in languages in which they understand.
(4) Section 91B of the Marine Safety Act 1998 (NSW) should be amended so that it is an offence to provide false information to a harbour master.
42 M:12152157_1 HRR (5) The Marine Safety Act 1998 should be amended so that the Port Authority’s functions explicitly refer to ensuring the work health and safety of all portside workers.
(6) Clear guidance must be given to cruise ship operators either from NSW Health, Safe Work NSW or the Australian Maritime Safety Authority about the protocols to protect crew members from contracting COVID-19 onboard a ship that departs and enters New South Wales territory, including guidance on accommodation, quarantine and disembarkation.
(7) The relevant government authorities must notify the employers of and unions covering port side workers of any suspected case of COVID-19 onboard a vessel so that the appropriate risk assessments may be undertaken and control measures put in place in accordance with the obligations under the WHS Act. Further, this protocol would allow workers at high risk (co-morbidity, over 60 etc.,) to elect not to work.
The Port Authority of NSW
(8) The Port Authority’s performance as an AMSA authorised Vessel Service Traffic (VTS) provider under Marine Order 64 (Vessel traffic services) 2013 be reviewed by AMSA or an independent auditor, and at the very least AMSA should impose new conditions on PANSW as an approved VTS provider requiring it to:
a. develop, in consultation with stakeholders, a new risk assessment framework that addresses work health and safety risks for pilots and port workers such as the risks arising from the presence of a communicable disease such as COVID-19;
b. that the new protocols include a publicly available Memorandum of Understanding or similar instrument setting out cooperative information exchange and communication arrangements between the Port Authority and AMSA, and that part of that communication require the Port Authority to convey decisions arising from communication and
43 M:12152157_1 HRR information exchange to the port workforce, maritime unions and employers of port workers;
c. consult SafeWork NSW, NSW Health, employers of workers who perform roles at NSW ports and their trade unions on the work health and safety risks, on new standards (integrated with health agency standards) and due diligence processes and protocols to ensure risks to the health and safety of all port workers are taken into consideration in decision making by the harbourmaster and VTS staff in relation to ship entry to ports in circumstances where communicable diseases are prevailing and or pandemics declared; and
d. retrain all VTS staff, including management and the Port Authority crisis management team, in new risk assessment and risk procedures and protocols.
(9) That a best practice pilotage and pratique system be established as follows:
a. Before a ship is approved by a NSW harbourmaster to navigate to a wharf to dock, while it is at an anchorage point, NSW Health be provided with all MARS human biosecurity information for a stage 1 assessment of the human biosecurity risk presenting on the ship.
b. That if a stage 1 assessment requires swabs for a communicable disease to be tested at an onshore testing laboratory, those swabs be obtained from the ship while at the anchorage point (by Water Police, by helicopter, by a pilotage ship or other means).
c. That based on the test results from swabs and any other human biosecurity information required, NSW Health complete a stage 2 human biosecurity health assessment.
d. That stage 2 human biosecurity health assessment be then provided by the NSW Chief Human Biosecurity Officer with a recommendation on pratique to the Commonwealth designated Biosecurity Officer, who then makes a decision on pratique.
44 M:12152157_1 HRR e. That the pratique decision be then provided to the harbourmaster who subject to written confirmation from the ship’s port agent that it has been formally advised of the pratique decision by the Commonwealth designated Biosecurity Officer, is then authorised to make a determination (taking into account the usual ship navigation criteria) as to whether the ship proceeds to berth.
f. Pratique, with whatever conditions are attached to the pratique decision, can then practically proceed.
(10) That the Port Authority be required to:
a. Determine and publicly promulgate a Memorandum of Understanding with NSW Health on human biosecurity information exchange based on MARS reports and health assessments in making a pratique recommendation to the Commonwealth.
b. Determine and publicly promulgate a Memorandum of Understanding with Safe Work NSW to activate a communicable disease hazards control procedure in the event of a communicable disease situation and other high risk work health and safety situations aimed at ensuring cooperation between the two agencies to minimise the risk of transmission of a communicable disease to the onshore workforce at NSW ports.
c. Determine and publicly promulgate a Memorandum of Understanding with AMSA to ensure consistent and quality decision making in relation to decisions of the harbourmaster to approve the release of a vessel for navigation into international waters in the event of a communicable disease situation.
NSW Health and Commonwealth Department of Health
(11) That NSW Health and the Commonwealth Department of Health review the NSW Health (COVID-19 Maritime Quarantine) Order 2020 of 28 March 2020 made under the Public Health Act 2010 (NSW) and the Biosecurity (Human
45 M:12152157_1 HRR Biosecurity Emergency) (Human Coronavirus with Pandemic Potential) (Emergency Requirements) Determination 2020 of 27 March 2020 made under the Biosecurity Act 2015 (Cth) to:
a. clarify that any powers given to, in the case of a NSW public health order, the NSW Commissioner of Police, do not impede the exercise of powers and responsibilities of officials, such as from the PANSW, SafeWork NSW and AMSA (as well as its counterpart ship regulators in the nations of ship registration);
b. ensure that, in the case of a Commonwealth biosecurity determination, that statutory powers and responsibilities of NSW and Commonwealth marine, ship, work health and safety and crew welfare regulators are not impeded.
AMSA
(12) That an independent investigation be conducted into the actions of AMSA to monitor the health and safety of crew while they were onboard the Ruby Princess on the shore of New South Wales between 19 March and 23 April 2020 to determine whether AMSA fulfilled its statutory function to inspect vessels to ensure compliance with the work and living conditions stipulated in Marine Order 11, Regulation 5.2.1 of the Maritime Labour Convention (Inspection and Enforcement) and the Merchant Shipping (Health and Safety At Work) Regulations 2004 (Bermuda).
Workforce training and instruction
(13) That Ministers and heads of both NSW and Commonwealth agencies involved in Australian biosecurity arrangements, in ship regulation and in work health and safety and welfare of ship’s crew and landside workforces that interact with ships, especially those exercising statutory powers, be required to undertake relevant training and instruction on:
a. The law under which they are appointed;
46 M:12152157_1 HRR b. The law they are required to administer, including marine law; and
c. The exercise of statutory powers;
(14) There be a common set of procedures jointly agreed by NSW and Commonwealth addressing pratique and harbourmaster functions.
Kylie Nomchong SC Bronwyn Byrnes
Denman Chambers 6 St James Hall Chambers
13 July 2020
47 M:12152157_1 HRR Subject: PANSW - Coronavirus Date: Wednesday, 29 January 2020 at 10:33:05 pm Australian Eastern Daylight Time From: Paul Garre