the special commission of inquiry into the ruby princess ... · the interactions of port authority...
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The Special Commission of Inquiry into the Ruby Princess
Submissions for Port Authority of NSW
A. OVERVIEW
1. Port Authority of NSW (Port Authority) makes submissions to the Special Commission of Inquiry in relation to two main topics:
a. the interactions of Port Authority with the Ruby Princess on 8 March 2020 and 18/19 March 2020; and
b. suggested recommendations arising from those interactions.
2. Before addressing each topic above, it is important to understand the role and functions of Port Authority which we outline below.
B. THE ROLE AND FUNCTIONS OF PORT AUTHORITY
(a) Statutory framework
3. Port Authority (formed in 2014 by an amalgamation of three port corporations, Sydney Ports Corporation, Newcastle Port Corporation and Port Kembla Port Corporation) is a statutory State-Owned Corporation under the Ports and Maritime Administration Act 1995 (NSW) (PMA Act) and the State Owned Corporations Act 1989 (NSW).
4. Port Authority’s objectives are set out in section 9 of the PMA Act as follows:
"(a) to be a successful business and, to this end:
(i) to operate at least as efficiently as any comparable businesses, and
(ii) to maximise the net worth of the State’s investment in the Port Corporation, and
(iii) to exhibit a sense of social responsibility by having regard to the interests of the community in which it operates and by endeavouring to accommodate these when able to do so, and
(b) to promote and facilitate trade through its port facilities, and
(c) to ensure that its port safety functions are carried out properly, and
(d) to promote and facilitate a competitive commercial environment in port operations, and
(e) to improve productivity and efficiency in its ports and the port-related supply chain."
5. Port Authority's principal functions are set out in section 10 of the PMA Act as follows:
"(a) to establish, manage and operate port facilities and services in its ports, and
(b) to exercise the port safety functions for which it is licensed in accordance with its operating licence, and
(c) to facilitate and co-ordinate improvements in the efficiency of the port-related supply chain."
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6. Port Authority is responsible for commercial marine functions in the ports of Sydney Harbour, Port Botany, Newcastle Harbour, Port Kembla, Port of Eden and Port of Yamba, including:1
a. the statutory Harbour Master's function;
b. the provision of pilotage and navigation services; and
c. port safety functions as prescribed in the Port Safety Operating Licence (PSOL), including the provision and maintenance of aids to navigation, marine pollution emergency response and administering the legislation concerning the handling, transportation and storage of dangerous goods within the ports' jurisdiction.2
7. In Sydney Harbour, Port Authority is also responsible for the management of cruise activities at its two facilities, the Overseas Passenger Terminal (OPT) at Circular Quay and the White Bay Cruise Terminal (WBCT) in White Bay. Other business activities include the management of dry bulk facilities at Glebe Island.3
8. Port Authority's role does not extend to the granting of pratique,4 which is carried out by biosecurity officers within the Department of Agriculture, Water and Environment (DAWE).5 However, Port Authority receives pratique information via a port management computer system developed by Port Authority called the "Sydney Harbour Integrated Ports System Booking Portal" (ShIPS). If a vessel is not granted pratique, Port Authority will not exercise its piloting or other functions with respect to the arrival of a vessel.6
9. The General Manager of Operations, Sydney is responsible for Sydney and Botany Harbour operations. These operations are carried out by approximately 100 people in different roles within a number of teams, including:7
a. Vessel Traffic Services (VTS);
b. Marine Operations and Pilot Transfer Teams;
c. Compliance and Planning Operations, including Dangerous Goods; and
d. Pilot Allocations.
10. VTS is responsible for:
a. coordinating the required bookings to bring ships into the harbour including pilots, tugboats and berth bookings;8
b. aiding the mariner in the safe and efficient use of navigable waters within the VTS area;9
2 Port Authority, "Statement of Corporate Intent 2019-20" dated 19 November 2019 <https://www.portauthoritynsw.com.au/media/3897/2019-20-port-authority-sci-shareholders-signed-copy-final-v10-22-november-2019.pdf>, accessed on 6 July 2020. 3 Port Authority, "Statement of Corporate Intent 2019-20" dated 19 November 2019 <https://www.portauthoritynsw.com.au/media/3897/2019-20-port-authority-sci-shareholders-signed-copy-final-v10-22-november-2019.pdf>, accessed on 6 July 2020. 4 Supplementary Statement of Cameron Butchart dated 5 May 2020, [12]. 5 Commonwealth of Australia, Voluntary Statement to the Special Commission of Inquiry into the Ruby Princess, dated 12 June 2020. 6 See "VTS Operations Procedures" - Annexure C to Statement of Cameron Butchart dated 5 May 2020, [1]. 7 Statement of Sarah Marshall dated 22 April 2020, [3]. 8 Statement of Sarah Marshall dated 22 April 2020, [3]. 9 Port Authority, "Vessel Traffic Services" <https://www.portauthoritynsw.com.au/sydney-harbour/pilotage-navigation/vessel-traffic-services-vts/>, accessed on 6 July 2020.
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c. communicating timely and important information to vessels participating in the monitoring programme to support their on-board decision making process;10
d. assisting in providing a harmonious interface between recreational and commercial shipping;11 and
e. providing an effective communications base for the response to any safety or pollution incident.12
11. Port Authority has statutory responsibilities for the safety of its pilots and other staff (including from human health risks) under the Work Health and Safety Act 2011 (NSW).13
(b) Role of the Harbour Master
12. A harbour master helps ensure the safety of vessels operating in port waters. This includes operational issues requiring an immediate response, strategic issues and the oversight of Marine Operations.14
13. A harbour master of a port has functions specified in the instrument of appointment15 and functions conferred by marine legislation.16 Such functions may be limited by the Marine Safety Regulation 2016 (NSW),17 by the Minister's directions,18 by the instrument of appointment or by a subsequent Ministerial instrument provided to the harbour master.19
14. A harbour master has powers under the Marine Safety Act 1998 (NSW) to direct and control:20
a. the time and manner in which vessels may enter or leave the port;
b. the navigation and movements of vessels within the port;
c. the position where, and the manner in which, vessels may anchor or be secured within the port;
d. the time and manner of the taking in or discharging by vessels within the port of cargo, stores, fuel, fresh water or water ballast;
e. the securing or removal of vessels within the port in, from or to any position as the harbour master thinks fit;
f. watch keeping requirements on vessels in ports;
g. the period of advance notification required for a shipping berth; and
10 Port Authority, "Vessel Traffic Services" <https://www.portauthoritynsw.com.au/sydney-harbour/pilotage-navigation/vessel-traffic-services-vts/>, accessed on 6 July 2020. 11 Port Authority, "Vessel Traffic Services" <https://www.portauthoritynsw.com.au/sydney-harbour/pilotage-navigation/vessel-traffic-services-vts/>, accessed on 6 July 2020. 12 Port Authority, "Vessel Traffic Services" <https://www.portauthoritynsw.com.au/sydney-harbour/pilotage-navigation/vessel-traffic-services-vts/>, accessed on 6 July 2020. 13 Work Health and Safety Act 2011 (NSW), s 3. 14 Port Authority of NSW, "Q&A: Sydney's Harbour Master" <https://www.portauthoritynsw.com.au/news-and-publications/2018-news/qa-sydneys-harbour-master/#:~:text=Harbour%20Masters%20help%20ensure%20the,a%20new%20challenge%20every%20day.>, accessed on 7 July 2020. 15 Marine Safety Act 1998 (NSW), s 86(3). 16 Marine Safety Act 1998 (NSW), s 87(1). 17 However, there are currently no limitations specified in the Marine Safety Regulation 2016 (NSW). 18 Marine Safety Act 1998 (NSW), s 87(3). 19 Marine Safety Act 1998 (NSW), s 87(2). 20 Marine Safety Act 1998 (NSW), s 88(1).
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h. the turning of a propeller of a vessel at a wharf.
15. A harbour master's directions in relation to the above cannot impede the proper administration of customs or quarantine services within the port.21
16. A harbour master has the discretion to prohibit dangerous vessels from entering into, or moving out of, the port, or any part thereof, if there is reasonable cause to believe the vessel is in imminent danger of sinking or causing serious damage to marine environment or property.22
17. If during pilotage, a marine pilot considers that the vessel should not enter the port or leave its place or anchorage for safety reasons, the marine pilot can direct the master of the vessel not to enter the port or leave its anchorage pending the harbour master's decision.23
18. A harbour master has general investigative powers to make inquiries of any person, gather information or evidence, take possession of any substance and detain it for testing, or require the production of any relevant document.24 The harbour master may detain the vessel for the purpose of the investigation.25 However, these powers are limited to investigations in respect of marine accidents within port areas or investigations to determine whether marine legislation has been, or may have been, contravened within port areas.26
C. THE INTERACTIONS OF PORT AUTHORITY IN RELATION TO THE RUBY
PRINCESS
(a) Lead up to the events of March 2020
19. In late January and early February 2020, Port Authority began planning a response to the escalating situation regarding COVID-19 in NSW.27 The response was centred around the critical need to protect Port Authority pilots and other staff from exposure to the virus, and involved three main components:
a. the development of a list of questions for Port Authority to ask vessels prior to pilotage in relation to human health risks on-board (Biosecurity Questions);28
b. Port Authority’s proposed response in the event that COVID-19 was evident on-board or the ships had visited identified high risk countries within 14 days from the proposed arrival at port;29 and
c. the development of safety guidelines for pilots, particularly in relation to the wearing of Personal Protection Equipment (PPE) in line with those issued by the Health Authorities (PPE Guidelines).30
21 Marine Safety Act 1998 (NSW), s 88(3). 22 Marine Safety Act 1998 (NSW), s 89(1). 23 Marine Safety Act 1998 (NSW), s 77(1). 24 Marine Safety Act 1998 (NSW), s 117. 25 Marine Safety Act 1998 (NSW), s 118(1). 26 Marine Safety Act 1998 (NSW), s 114(1). 27 Statement of Sarah Marshall dated 22 April 2020, [4]. 28 Statement of Sarah Marshall dated 22 April 2020, [4]; Statement of Emma Fensom dated 4 May 2020, [6]-[7], Annexure 1 and Annexure 2. 29 Statement of Emma Fensom dated 4 May 2020, [6]-[7], Annexure 1 and Annexure 2. 30 Statement of Sarah Marshall dated 22 April 2020, [19]; Statement of Emma Fensom dated 4 May 2020, [6]-[7], Annexure 1 and Annexure 2.
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20. On 4 March 2020, Port Authority’s Crisis Management Team (CMT) was activated under its Business Continuity Plan as a response to COVID-19 and part of its role was to oversee the ongoing development of the Biosecurity Questions, Port Authority’s response to the Biosecurity Questions and PPE Guidelines.31 From this date onwards, Port Authority continued to revise its response to COVID-19 (including refining the PPE Guidelines) and provide regular updates to customers and stakeholders regarding same.32
(b) Events of 8-16 March 2020
21. On 7 March 2020, NSW Health assessed the Ruby Princess as posing a "medium risk" in relation to COVID-19 based on the presence of symptomatic passengers who had been in Singapore before embarking on the cruise.33 This "medium risk" assessment meant that NSW Health planned to board the ship upon docking to carry out health checks and COVID-19 swabs.34 No information regarding this intended course of action was communicated by NSW Health to Port Authority and, as a result, Port Authority was not aware that NSW Health would be attending the OPT on 8 March 2020.35
22. On 8 March 2020, the Ruby Princess lodged a Human Health Report via the Maritime Arrivals Reports System (MARS) with the DAWE advising that there were 158 sick passengers on-board, 13 of whom had an elevated temperature.36 This information was not communicated to Port Authority.
23. At 12:18am on 8 March 2020, the Ruby Princess sent an email to Port Authority in response to a request regarding the Biosecurity Questions. The Ruby Princess provided answers to the Biosecurity Questions which advised there were no ill passengers on-board. In light of the answers to the Biosecurity Questions, at 12:25am on 8 March 2020, Sydney VTS confirmed that it would put a pilot on board to facilitate its arrival at the OPT.37
24. On the morning of 8 March 2020, NSW Health arrived at the OPT.38 This was the first point in time at which Port Authority became aware of human health risks associated with the Ruby Princess having not been privy to any earlier information regarding the "medium risk" assessment nor the Human Health Report lodged via MARS.39 It also became apparent to Port Authority staff that the answers provided to the Biosecurity Questions were incorrect.40
25. Following the absence of communication surrounding human health risks on 8 March 2020, Port Authority was determined to gain access to critical information concerning work health safety consequences for its staff and may impact its duties, functions and responsibilities generally so as to improve its response to COVID-19.41
31 Statement of Emma Fensom dated 5 May 2020, [18]; Supplementary Statement of Sarah Marshall dated 5 May 2020, [9]. 32 Statement of Emma Fensom dated 5 May 2020, [7] and [18]; 33 Statement of Kelly-Anne Ressler dated 1 May 2020, [43]; Evidence of Kelly-Anne Ressler, Transcript of Hearing of the Special Commission (5 May 2020), T384.1-15. 34 Statement of Kelly-Anne Ressler dated 1 May 2020, [43]-[44]. 35 Evidence of Sarah Marshall, Transcript of Hearing of the Special Commission (1 May 2020), T156-T157. 36 Statement of Sarah Marshall dated 5 May 2020, Annexure J. 37 Statement of Sarah Marshall dated 5 May 2020, Annexure M. 38 Statement of Kelly-Anne Ressler dated 1 May 2020, [44] and [47]; Evidence of Kelly-Anne Ressler, Transcript of Hearing of the Special Commission (5 May 2020), T394-T395. 39 Supplementary Statement of Sarah Marshall dated 5 May 2020, [12]. 40 Statement of Emma Fensom dated 5 May 2020, Annexure 10; Evidence of Sarah Marshall, Transcript of Hearing of the Special Commission (1 May 2020), T178.20-25. 41 Supplementary Statement of Sarah Marshall dated 5 May 2020, [18]; Statement of Emma Fensom dated 5 May 2020, Annexure 14.
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26. Between 9 and 16 March 2020, Port Authority communicated, or attempted to communicate, with various Commonwealth and State agencies, and other stakeholders, to obtain further information in relation to the human health risks on-board vessels. Notably, this included:
a. contact with various representatives from the Australian Border Force (ABF) regarding guidance on managing risk of COVID-19 to Port Authority employees;42
b. conversations with NSW Health to ascertain who was responsible for the routine health screening of cruise ships, including with Kelly-Anne Ressler (Epidemiologist, Public Health Unit (NSW Health)) who was identified as the appropriate contact person;43
c. discussions between Sarah Marshall, General Manager Operations - Sydney (Port Authority) and Ms Ressler regarding the NSW Health COVID-19 risk assessment process. In those discussions, Ms Ressler confirmed that Port Authority would be informed of any ship categorised as "medium risk" or "high risk" given that NSW Health would be attending for testing;44 and
d. discussions between Ms Marshall and representatives from DAWE regarding Ms Marshall's request for access to MARS.45 The purpose of this request was for Port Authority to obtain Human Health Reports to provide "visibility… [and] to assist with our ability to safely bring vessels into port where they may have known COVID19 symptoms".46 Ms Marshall also requested an automated alert from MARS or a manual alert from DAWE where they had flagged a Human Health Inspection was required on a vessel.47 Both of these requests were denied;48
27. In addition, Port Authority made changes to the content of the Biosecurity Questions and PPE Guidelines49 and the development of a COVID-19 scenario planning matrix document by the CMT (COVID-19 Scenario Response Matrix).50
(c) Events of 17-20 March 2020
28. At 11:35am on 17 March 2020, Carnival sent a Daily Ships Programme to Port Authority in relation to Ruby Princess noting a scheduled arrival time of 6:00am on 19 March 2020.51
29. At 1:13pm on 17 March 2020, Franz Odermatt (Biosecurity Operations Division, DAWE) entered data into the ShIPS system notifying Port Authority that pratique for the Ruby Princess had been granted under section 48(1) of the Biosecurity Act 2015 (Cth) (Biosecurity Act).52
30. At around 3:00pm on 18 March 2020, Carnival Cruises (Carnival) requested an arrival time for the Ruby Princess of 2.30am on 19 March 2020 (earlier than the scheduled 6:00am arrival) and advised Port Authority that they were "unsure if NSW Health will be boarding, though have some routine swabs to send off".53
42 Statement of Emma Fensom dated 5 May 2020, [12]-[14]; Supplementary Statement of Sarah Marshall dated 5 May 2020, [21]; Evidence of Sarah Marshall, Transcript of Hearing of the Special Commission (1 May 2020), T181; Evidence of Emma Fensom, Transcript of Hearing of the Special Commission (8 May 2020), T703-T706. 43 Supplementary Statement of Sarah Marshall dated 5 May 2020, [22]; Evidence of Sarah Marshall, Transcript of Hearing of the Special Commission (1 May 2020), T158-T159. 44 Supplementary Statement of Sarah Marshall dated 5 May 2020, Annexure G, Annexure H; Evidence of Sarah Marshall, Transcript of Hearing of the Special Commission (1 May 2020), T164-T165. 45 Evidence of Sarah Marshall, Transcript of Hearing of the Special Commission (1 May 2020), T181-T185. 46 Supplementary Statement of Sarah Marshall dated 5 May 2020, [25], [29] and Annexure I. 47 Supplementary Statement of Sarah Marshall dated 5 May 2020, [25], [29] and Annexure I. 48 Supplementary Statement of Sarah Marshall dated 5 May 2020, [25], [29] and Annexure I; Evidence of Sarah Marshall, Transcript of Hearing of the Special Commission (1 May 2020), T183-T185. 49 Statement of Emma Fensom dated 5 May 2020, [25]. 50 Statement of Sarah Marshall dated 5 May 2020, [20]. 51 Statement of Julie Taylor dated 13 May 2020, Annexure 11. 52 See ShIPS extract indicating pratique status on 17 March 2020 which is Attachment 1 to these submissions. 53 Statement of Robert Rybanic dated 21 April 2020, [14].
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31. At 3:41pm on 18 March 2020, Ms Marshall emailed Ms Ressler requesting information regarding NSW Health's assessment of the Ruby Princess.54 Ms Ressler responded that the Ruby Princess had been assessed as "low risk" and accordingly, NSW Health would not be attending the OPT.55 Ms Ressler mentioned that five COVID-19 samples had been taken in Wellington and all had come back negative.56
32. At 4:10pm on 18 March 2020, Carnival sent a Daily Ships Programme to Port Authority in relation to Ruby Princess noting a scheduled arrival time of 2:30am on 19 March 2020.57
33. At 7:20pm on 18 March 2020, Steve Howieson (Duty VTS Manager, Port Authority) emailed the Ruby Princess requesting answers to the Biosecurity Questions.58
34. At 8:03pm on 18 March 2020, the Ruby Princess responded to Mr Howieson in relation to the Biosecurity Questions.59 The email stated:
"Please read below arrival declaration as per your instruction.
➢ What were the last 5 ports of call? - Napier 15/03/20, Wellington 14/03/20, Akaroa
13/03/20, Port Chalmers 12/03/20, Fiordland 11/03/20
➢Are there any ill passengers or crew on-board? Yes
➢ Are any crew members showing symptoms of Covid-19 on-board? No
➢ Has the vessel been in mainland China, Iran, Republic of Korea or Italy in the last 14
days? NO
➢ Has any person on the vessel been in contact with a proven case of novel coronavirus
infection in the last 14 days. NO
➢ Are there any crew or passengers who have left, or transited through, mainland China or
Iran, Republic of Korea or Italy less than 14 days ago? NO"
35. At 8:46pm on 18 March 2020, Mr Howieson spoke with Sebastiano Azzarelli (Staff Captain, Ruby Princess) who confirmed, further to the answers to the Biosecurity Questions, that there were no ill passengers on-board from any of the identified countries of risk.60
36. At 10:35pm on 18 March 2020, Mr Howieson received a telephone call from Peter Dilonardo (Senior Superintendent, NSW Ambulance).61 In the course of his duties, Mr Howieson had never previously been contacted by NSW Ambulance.62 Mr Dilonardo advised that there were two suspected "coronavirus" patients on-board a Carnival ship docking at 2:30am and that an
54 Statement of Sarah Marshall dated 5 May 2020, Annexure N; Statement of Kelly-Anne Ressler dated 1 May 2020, [85] and Annexure KAR-18. 55 Statement of Sarah Marshall dated 5 May 2020, Annexure N; Statement of Kelly-Anne Ressler dated 1 May 2020, [85] and Annexure KAR-18; Evidence of Sarah Marshall, Transcript of Hearing of the Special Commission (1 May 2020), T187.40-45; Evidence of Kelly-Anne Ressler, Transcript of Hearing of the Special Commission (5 May 2020), T437.35-T438.25. 56 Statement of Sarah Marshall dated 5 May 2020, Annexure N; Statement of Kelly-Anne Ressler dated 1 May 2020, Annexure KAR-18. 57 Statement of Julie Taylor dated 13 May 2020, Annexure 13. 58 Statement of Stephen Howieson dated 30 April 2020, [10]. 59 Statement of Stephen Howieson dated 30 April 2020, [15]. 60 Statement of Stephen Howieson dated 30 April 2020, [16]-[17]. 61 Statement of Stephen Howieson dated 30 April 2020, [22]-[27]; Statement of Peter Dilonardo dated 30 April 2020, [14]. 62 Statement of Stephen Howieson dated 30 April 2020, [22]-[27].
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ambulance had been requested by someone named "Bibi" for two passengers with respiratory issues.63
37. At 10:44pm on 18 March 2020, Mr Howieson called Cameron Butchart (Manager Port Services, Port Authority) who was the Duty Harbour Master at that time.64 Mr Howieson and Mr Butchart discussed the telephone call from Mr Dilonardo as well as the answers the Ruby Princess had provided to the Biosecurity Questions.65 Mr Butchart instructed Mr Howieson to request that the Ruby Princess provide its MARS Human Health Report.66 Mr Butchart subsequently called Mr Dilonardo in relation to the ambulances requested for the Ruby Princess.67
38. At 10:56pm on 18 March 2020, Mr Butchart called Emma Fensom (Acting Chief Operating Officer, Port Authority) to inform her about the phone call from Mr Dilonardo and update her on the situation.68 Mr Butchart also passed on his concerns about the authenticity of Mr Dilonardo.69 Mr Butchart and Ms Fensom also discussed the conflict between Mr Dilonardo's concerns and the fact that pratique had been granted and NSW Health had assessed the ship as "low risk".70
39. At 10:59pm on 18 March 2020, Mr Howieson emailed the Ruby Princess requesting a copy of the MARS Human Health Report.71 He advised that a failure to provide the document would delay pilotage.72
40. At 11:07pm on 18 March 2020, Mr Butchart contacted the NSW Police Marine Area Command (Sydney Water Police) in an effort to confirm the identity of Mr Dilonardo.73 The Sydney Water Police subsequently advised that the number provided by Mr Dilonardo was linked to NSW Ambulance.74
41. At 11:13pm on 18 March 2020, Mr Butchart attempted to call Mr Odermatt, who was listed as the DAWE contact person in the COVID-19 Scenario Response Matrix.75 Mr Odermatt did not answer.76
42. Between 11:14pm and 11:17pm on 18 March 2020, Mr Butchart attempted to call Bibi Tokovic (Port Agent, Carnival) and Valerie Burrows (Sydney Port Agency Manager, Carnival) three times each.77 Neither of them answered Mr Butchart's calls, acknowledged them or called him back.78
63 Statement of Stephen Howieson dated 30 April 2020, [22]-[27] and Annexure A (Transcript of Identifier: 20200318113534- anonymous_0-61292964014-323921-1169988). 64 Statement of Cameron Butchart dated 28 April 2020, [14]; Statement of Stephen Howieson dated 30 April 2020, [28]-[32]. 65 Statement of Cameron Butchart dated 28 April 2020, [14]; Statement of Stephen Howieson dated 30 April 2020, [28]-[32]. 66 Statement of Cameron Butchart dated 28 April 2020, [14]; Statement of Stephen Howieson dated 30 April 2020, [28]-[32]. 67 Statement of Cameron Butchart dated 28 April 2020, [15]; Statement of Emma Fensom dated 5 May 2020, [35]; Statement of Peter Dilonardo dated 30 April 2020, [15]. 68 Statement of Cameron Butchart dated 28 April 2020, [17]. 69 Statement of Cameron Butchart dated 28 April 2020, [17]. 70 Statement of Emma Fensom dated 5 May 2020, [35]. 71 Statement of Stephen Howieson dated 30 April 2020, [34]. 72 Statement of Stephen Howieson dated 30 April 2020, [34]. 73 Statement of Cameron Butchart dated 28 April 2020, [19]. 74 Statement of Cameron Butchart dated 28 April 2020, [21]. 75 Statement of Cameron Butchart dated 28 April 2020, [25]. 76 Statement of Cameron Butchart dated 28 April 2020, [25]. 77 Statement of Cameron Butchart dated 28 April 2020, [27]. 78 Statement of Cameron Butchart dated 28 April 2020, [27]; Evidence of Dobrila Tokovic, Transcript of Hearing of the Special Commission (6 May 2020), T513.1-5; Evidence of Valerie Burrows, Transcript of Hearing of the Special Commission (8 May 2020), T782.1-40.
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43. At 11:16pm on 18 March 2020, Mr Butchart called Mr Howieson again to advise that he was unable to contact any Carnival Port Agents.79 Mr Howieson confirmed he had tried to contact Arnaldo Kretzig, Port Agent (Carnival) but was unsuccessful.80 In light of the inability of Port Authority to raise any of the Carnival Port Agents or Mr Odermatt, Mr Butchart instructed Mr Howieson to deny the booking for the Ruby Princess (in effect, to deny it pilotage) 81 and request further information regarding the ill passengers or crew on-board.82 This decision was made with the safety of Port Authority pilot in mind and until more information could be obtained.83
44. Mr Butchart subsequently had numerous phone conversations with the Sydney Water Police who advised that they were also attempting to contact the Carnival Port Agents.84
45. At 11:39pm on 18 March 2020, Mr Butchart contacted Robert Rybanic (Senior Manager Cruise and Terminal Operations, Port Authority) who advised that he would call Paul Mifsud (Head of Operations, Carnival) to escalate Port Authority's concerns regarding the Ruby Princess.85
46. At 11:45pm on 18 March 2020, Mr Howieson recorded in ShIPS that the Ruby Princess was denied entry in terms of Port Authority refusing to provide a pilot on board and on the basis that more information was required.86
47. At 11:52pm on 18 March 2020, Mr Howieson spoke with Mr Azzarelli and advised that pilotage had been denied.87 Mr Howieson advised that Port Authority required more information from the ship including the MARS Human Health Report.88
48. At 11:52pm on 18 March 2020, Mr Rybanic had a telephone conversation with Mr Mifsud to seek clarity and any further information in relation to the phone calls Mr Butchart had received from Mr Dilonardo.89 Mr Mifsud advised that the ambulances were not called for COVID-19 symptoms, and confirmed that NSW Health had deemed the ship "low risk" and would not be attending the OPT.90
49. At 12:02am on 19 March 2020, Mr Rybanic advised Mr Butchart and Ms Fensom of his conversation with Mr Mifsud.91 Mr Rybanic, Mr Butchart and Ms Fensom discussed Mr Mifsud's advice in light of the available information received from the Sydney Water Police, NSW Ambulance, and NSW Health.92 Mr Rybanic stated that he was told by Mr Mifsud that:
79 Statement of Cameron Butchart dated 28 April 2020, [28]; Supplementary Statement of Cameron Butchart dated 5 May 2020, [24(j)]. 80 Statement of Cameron Butchart dated 28 April 2020, [28], [60]; Supplementary Statement of Cameron Butchart dated 5 May 2020, [24(j)]. 81 Evidence of Cameron Butchart, Transcript of Hearing of the Special Commission (1 May 2020), T215.45-T216.15. 82 Statement of Cameron Butchart dated 28 April 2020, [28], [60]; Supplementary Statement of Cameron Butchart dated 5 May 2020, [24(j)]; Evidence of Robert Rybanic, Transcript of Hearing of the Special Commission (6 May 2020), T599.1-3. 83 Statement of Emma Fensom dated 5 May 2020, [39]; Evidence of Emma Fensom, Transcript of Hearing of the Special Commission (8 May 2020), T741.1-5. 84 Statement of Cameron Butchart dated 28 April 2020, [32]. 85 Statement of Cameron Butchart dated 28 April 2020, [34]; Statement of Robert Rybanic dated 21 April 2020, [15]; Evidence of Robert Rybanic, Transcript of Hearing of the Special Commission (6 May 2020), T598.31-46. 86 Statement of Stephen Howieson dated 30 April 2020, [56]. 87 Statement of Stephen Howieson dated 30 April 2020, [54]-[55]. 88 Statement of Stephen Howieson dated 30 April 2020, [54]-[55]. 89 Statement of Robert Rybanic dated 21 April 2020, [16]; Evidence of Robert Rybanic, Transcript of Hearing of the Special Commission (6 May 2020), T600.26-29. 90 Statement of Robert Rybanic dated 21 April 2020, [16] and [18]; Evidence of Robert Rybanic, Transcript of Hearing of the Special Commission (6 May 2020), T601.5-9, 28-30; Evidence of Paul Mifsud, Transcript of Hearing of the Special Commission (11 May 2020), T865-T866. 91 Statement of Cameron Butchart dated 28 April 2020, [38]; Statement of Robert Rybanic dated 21 April 2020, [18]; Statement of Emma Fensom dated 5 May 2020, [44]; Supplementary Statement of Cameron Butchart dated 5 May 2020, [24(g)]; Evidence of Robert Rybanic, Transcript of Hearing of the Special Commission (6 May 2020), T606.9-10. 92 Evidence of Robert Rybanic, Transcript of Hearing of the Special Commission (6 May 2020), T606.
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"it wasn’t COVID-19 related, that NSW Health won’t be at arrivals and considered it a low risk ship".93 Mr Rybanic also told Mr Butchart and Ms Fensom that Mr Mifsud "had said he didn’t know why the Ship’s Doctor had called and that it was a bit unusual but that there was nothing to be concerned about".94 Ms Fensom recalled that Mr Rybanic also indicated that NSW Health "has not advised there is [sic] COVID-19 potential cases on board".95
50. At 12:14am on 19 March 2020, Mr Howieson emailed Mr Azzarelli with a list of questions to answer relating to passenger or crew illness on-board the ship, as follows:
"Are the sick persons passengers or crew, what are their symptoms and to please send a copy of their MARS Declaration".96
51. At 12:16am on 19 March 2020, Mr Howieson received a phone call from Dr Ilse Von Watzdorf (Ships Doctor, Ruby Princess), Mr Azzarelli, and the Captain of the Ruby Princess.97 Dr Von Watzdorf advised that NSW Health had cleared Ruby Princess for disembarkation98 with a general precaution and that guests who were sick were in isolation.99 Dr Von Watzdorf stated that there were around 110-120 people with illness on-board and two passengers requiring medical disembarkation.100 Mr Howieson recalled that Dr Von Watzdorf stated that:
"both of the medical disembarks had upper ‘respite’ infections, but the reason for their disembark was more due to one having had a heart attack and the other having a trapped nerve in their leg."101
Mr Howieson noted he had received the MARS Human Health Report and would seek advice.102
52. At 12:16am on 19 March 2020, Ms Fensom sent a text message to Mr Mifsud requesting that he call her urgently.103 Mr Mifsud called Ms Fensom and advised that NSW Health had determined the ship was "low risk", had cleared the ship to berth and were landing swabs to be tested.104 Mr Mifsud advised that the ambulances meeting the ship were not for COVID-19 cases.105
53. At 12:23am on 19 March 2020, Mr Butchart received a phone call from a female officer from the Department of Home Affairs (Home Affairs).106 The officer advised that she had queries about the Ruby Princess as she had heard that ambulances had been requested for suspected COVID-19.107 Mr Butchart advised that an unconfirmed report had been received and that Port Authority had since spoken with Carnival senior management who advised that the ambulances were not required for COVID-19 cases.108 Mr Butchart also advised that the vessel's entry was still denied.109
93 Statement of Robert Rybanic dated 21 April 2020, [18]. 94 Statement of Robert Rybanic dated 21 April 2020, [18]. 95 Statement of Emma Fensom dated 5 May 2020, [44]. 96 Statement of Stephen Howieson dated 30 April 2020, [66]. 97 Statement of Stephen Howieson dated 30 April 2020, [67]; Evidence of Sebastiano Azzarelli, Transcript of Hearing of the Special Commission (22 April 2020), T111-T112; Evidence of Ilse Von Watzdorf, Transcript of Hearing of the Special Commission (22 April 2020), T33. 98 Evidence of Ilse Von Watzdorf, Transcript of Hearing of the Special Commission (22 April 2020), T34. 99 Statement of Stephen Howieson dated 30 April 2020, [68]. 100 Statement of Stephen Howieson dated 30 April 2020, [69]. 101 Statement of Stephen Howieson dated 30 April 2020, [71]; Transcript and audio recording of telephone conversation between Steven Howieson and Dr von Watzdorf dated 19 March 2020. 102 Statement of Stephen Howieson dated 30 April 2020, [73]. 103 Statement of Emma Fensom dated 5 May 2020, [45]; Evidence of Paul Mifsud, Transcript of Hearing of the Special Commission (11 May 2020), T869. 104 Statement of Emma Fensom dated 5 May 2020, [45]; Evidence of Emma Fensom, Transcript of Hearing of the Special Commission (8 May 2020), T749.36-44, 5-6. T750.7-8. 105 Statement of Emma Fensom dated 5 May 2020, [45]; Evidence of Paul Mifsud, Transcript of Hearing of the Special Commission (11 May 2020), T871.35; Evidence of Emma Fensom, Transcript of Hearing of the Special Commission (8 May 2020), T750.5-7. 106 Statement of Cameron Butchart dated 28 April 2020, [44]; Evidence of Cameron Butchart, Transcript of Hearing of the Special Commission (1 May 2020), T226.36. 107 Statement of Cameron Butchart dated 28 April 2020, [44]. 108 Statement of Cameron Butchart dated 28 April 2020, [44]. 109 Statement of Cameron Butchart dated 28 April 2020, [44].
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54. At 12:25am on 19 March 2020, Mr Butchart called Mr Howieson who recounted his phone call with Dr Von Watzdorf, Mr Azzarelli and the Captain of Ruby Princess.110 Mr Butchart instructed Mr Howieson to re-book the vessel for pilotage.111 Mr Butchart subsequently spoke with Ms Fensom who agreed with this decision.112
55. At 12:30am on 19 March 2020, Mr Howieson contacted the Ruby Princess by radio to confirm that, based on the information provided by the ship and Dr Von Watzdorf, the Ruby Princess had clearance to enter Sydney Harbour.113 Mr Howieson advised that the pilot would arrive in 40 minutes.114
56. At 12:35am on 19 March 2020, Mr Butchart contacted Mr Dilonardo and referred to Port Authority's discussions with Mr Mifsud. 115 Mr Butchart advised Mr Dilonardo that Port Authority would be requiring their pilot to wear PPE.116 Mr Dilonardo advised that NSW Ambulance would attend the ship as a precaution in the absence of negative test results.117
57. At 12:39am on 19 March 2020, Mr Butchart spoke with Ms Fensom regarding his conversation with Mr Dilonardo.118 Mr Butchart and Ms Fensom agreed that the information they had received indicated that the ambulances were not called for COVID-19 and there was no outstanding reason for Port Authority to deny the Ruby Princess pilotage.119
58. At 1:06am on 19 March 2020, Mr Butchart emailed Sam Chell (Pilot, Port Authority) to advise of the contradicting reports received regarding the presence of COVID-19 on-board the Ruby Princess.120 Mr Butchart requested that Mr Chell wear PPE in carrying out pilotage services and forwarded the email to VTS and requested that they ensure Mr Chell was made aware of this.121
59. At 1:08am on 19 March 2020, Mr Chell boarded the Ruby Princess wearing PPE but had not read the email from Mr Butchart.122
60. At 2:15am on 19 March 2020, Mr Butchart received a phone call from a female ABF officer who advised that she was in charge of Customs at the OPT.123 The ABF officer expressed concerns about the MARS Human Health Report and how she would convey this to her staff.124 Mr Butchart advised that Port Authority had received a report from NSW Ambulance earlier in the evening and that they had completed their required due diligence.125 He further advised that the Ruby Princess was still in safe water to be sent back to sea126 and that she had 20 minutes to make a decision before the ship would be unable to turn around.127 At 2:20am, the ABF officer again called Mr
110 Supplementary Statement of Cameron Butchart dated 5 May 2020, [24(j)]; Statement of Cameron Butchart dated 28 April 2020, [46]; Statement of Stephen Howieson dated 30 April 2020, [78]. 111 Supplementary Statement of Cameron Butchart dated 5 May 2020, [24(j)]; Statement of Cameron Butchart dated 28 April 2020, [46]; Statement of Stephen Howieson dated 30 April 2020, [78]. 112 Supplementary Statement of Cameron Butchart dated 5 May 2020, [24(k)]; Statement of Cameron Butchart dated 28 April 2020, [47]. 113 Statement of Stephen Howieson dated 30 April 2020, [85]-[86]. 114 Statement of Stephen Howieson dated 30 April 2020, [86]. 115 Statement of Peter Dilonardo dated 30 April 2020, [24]; 116 Statement of Peter Dilonardo dated 30 April 2020, [25]-[27]. 117 Statement of Peter Dilonardo dated 30 April 2020, [25]-[27]. 118 Statement of Cameron Butchart dated 28 April 2020, [49]. 119 Statement of Cameron Butchart dated 28 April 2020, [49]; Evidence of Cameron Butchart, Transcript of Hearing of the Special Commission (1 May 2020), T216.25-27. 120 Statement of Cameron Butchart dated 28 April 2020, [50]. 121 Statement of Cameron Butchart dated 28 April 2020, [50]. 122 Statement of Sam Chell dated 22 April 2020, [12] and [17]. 123 Statement of Cameron Butchart dated 28 April 2020, [52]; Evidence of Cameron Butchart, Transcript of Hearing of the Special Commission (1 May 2020), T221-T223, T228.6-7. 124 Statement of Cameron Butchart dated 28 April 2020, [52]; Evidence of Cameron Butchart, Transcript of Hearing of the Special Commission (1 May 2020), T228.30-31. 125 Statement of Cameron Butchart dated 28 April 2020, [52]. 126 Evidence of Cameron Butchart, Transcript of Hearing of the Special Commission (1 May 2020), T227.6-7 and T234.15. 127 Statement of Cameron Butchart dated 28 April 2020, [52]; Evidence of Cameron Butchart, Transcript of Hearing of the Special Commission (1 May 2020), T227.12-14.
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Butchart and stated that she had spoken to her supervisor and confirmed, in essence, that there were no issues with the ship docking at the OPT.128 Mr Butchart has clarified that he did not require confirmation from ABF to bring the ship in but that he was "willing to address her concerns."129
61. At 10:50am on 19 March 2020, Mr Butchart called NSW Ambulance and spoke to a female paramedic who appeared to be a supervisor.130 Mr Butchart enquired about the condition of the patients who had been medically disembarked from the Ruby Princess and if any of them had tested positive for COVID-19.131 The paramedic did not provide him with any answers.132
62. At 10:56am on 19 March 2020, Julie Taylor (Duty Manager Cruise Operations, Port Authority had a phone call with Ms Tokovic.133 Ms Taylor had attended the OPT as part of her role in preparing the OPT for the Ruby Princess' arrival. Ms Taylor said words to the effect of: "I have just overheard / been advised that there were some guests on board who have been in isolation. Can you elaborate on that?"134 Ms Tokovic replied with words to the effect of: "Yes there were guests in isolation with flu like symptoms, that it was just routine and that swabs had been taken and sent off".135 Ms Tokovic added that "this was not something we would normally let you know about".136 Ms Taylor said words to the effect that: "I guess I would have liked to have been advised about that" [i.e. people in isolation].137 Ms Tokovic said "there is no reason that we would normally let you know".138 Ms Taylor asked about how Port Authority would know what the results were and Ms Tokovic replied stating that Port Authority would be advised.139
63. Shortly after the phone call between Ms Tokovic and Ms Taylor, Ms Taylor called Mr Rybanic to inform him of her phone call with Ms Tokovic.140
64. At 11:52am on 19 March 2020, Ms Taylor received a phone call from Ms Burrows, who requested to meet with Ms Taylor when she arrived to the OPT later that day.141 At this meeting, Ms Burrows mentioned Ms Taylor's phone call with Ms Tokovic and the fact that Ms Taylor had asked about the passengers in isolation.142 Ms Taylor confirmed that this was correct and that she had assumed that this was the kind of information that would be passed on.143 Ms Taylor also confirmed that she was concerned and queried why she was not aware of passengers in isolation on this voyage, even though she had been previously advised of this in relation to Ruby Princess' 8 March arrival.144
128 Statement of Cameron Butchart dated 28 April 2020, [52]; Evidence of Cameron Butchart, Transcript of Hearing of the Special Commission (1 May 2020), T234.28-29. 129 Evidence of Cameron Butchart, Transcript of Hearing of the Special Commission (1 May 2020), T237.45. 130 Statement of Cameron Butchart dated 28 April 2020, [54]. 131 Statement of Cameron Butchart dated 28 April 2020, [54]; Evidence of Cameron Butchart, Transcript of Hearing of the Special Commission (8 May 2020), T676. 132 Statement of Cameron Butchart dated 28 April 2020, [54]. 133 Statement of Julie Taylor dated 13 May 2020, [63]. 134 Statement of Julie Taylor dated 13 May 2020, [63]; Evidence of Dobrila Tokovic, Transcript of Hearing of the Special Commission (6 May 2020), T534.6-30. 135 Statement of Julie Taylor dated 13 May 2020, [63]. 136 Statement of Julie Taylor dated 13 May 2020, [63]; Evidence of Dobrila Tokovic, Transcript of Hearing of the Special Commission (6 May 2020), T535.16-23. 137 Statement of Julie Taylor dated 13 May 2020, [63]. 138 Statement of Julie Taylor dated 13 May 2020, [63]. 139 Statement of Julie Taylor dated 13 May 2020, [63]. 140 Statement of Robert Rybanic dated 21 April 2020, [21]; Evidence of Robert Rybanic, Transcript of Hearing of the Special Commission (6 May 2020), T607.34-46. 141 Statement of Julie Taylor dated 13 May 2020, [66]. 142 Statement of Julie Taylor dated 13 May 2020, [66]. 143 Statement of Julie Taylor dated 13 May 2020, [66]. 144 Statement of Julie Taylor dated 13 May 2020, [66].
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65. At 2:10pm on 19 March 2020, Mr Butchart called Ms Burrows who stated that she did not know where Ms Tokovic had received her incorrect information in relation to the ambulances for the Ruby Princess and that it was an internal miscommunication within Carnival.145 Ms Burrows added that, when an agent books a medical disembark, they do so with direct information from the ship's doctor.146 Mr Butchart enquired as to why Ms Burrows did not call him back.147 Ms Burrows stated that it had been a busy week and that she must have slept through the calls.148
66. On 20 March 2020, Port Authority received an email from NSW Health stating that COVID-19 testing had taken place and that three passengers and one crew member had tested positive.149
67. Port Authority does not intend to develop the events outlined above into any particular assertions or submissions relating to the conduct of particular entities or their staff. However, the events outlined above do reveal that:
a. Port Authority was not furnished with the information it required to perform its duties and obligations (such information was not readily available through ShIPS or otherwise). For example, Port Authority was notified that pratique had been granted on 17 March 2020 at 1:13pm via ShIPS150 despite the fact that pratique does not appear to have been granted by DAWE until 7:39am on 19 March 2020;151
b. there was no central coordination point within the Commonwealth government to which Port Authority could turn to obtain the information it required or to address the queries it had or were directed to it in relation to the Ruby Princess;
c. Port Authority was required to make numerous inquiries with various entities to understand the prevailing state of affairs and attempted to do so by piecing together snippets of information from various sources. The information it received was difficult to obtain, inconsistent and difficult to assess in terms of its reliability152;
d. Port Authority reasonably relied upon the information that it did receive; and
e. Port Authority did not possess any statutory powers to compel the Ruby Princess (or Carnival's Port Agents) to provide it with the required information.
145 Statement of Cameron Butchart dated 28 April 2020, [55]; Evidence of Cameron Butchart, Transcript of Hearing of the Special Commission (8 May 2020), T677.5-7, T679.15-18. 146 Statement of Cameron Butchart dated 28 April 2020, [55]. 147 Statement of Cameron Butchart dated 28 April 2020, [55]. 148 Statement of Cameron Butchart dated 28 April 2020, [55]. 149 Statement of Sarah Marshall dated 22 April 2020, [35]. This testing of a crew member appeared to have occurred despite the fact that the Ruby Princess had recorded "no" in response to Port Authority's inquiry (via the Biosecurity Questions) as to whether there were any ill crew members on-board. 150 See ShIPS extract indicating pratique status on 17 March 2020 which is Attachment 1 to these Submissions. 151 Voluntary Statement to the Special Commission of Inquiry into the Ruby Princess by the Commonwealth of Australia dated 12 June 2020, [168]. 152 Including, for example, inconsistent information recorded by the Ruby Princess in response to the Biosecurity Questions. While the answers given to Port Authority on 18 March 2020 indicated that there were no ill crew members on-board (see Statement of Steve Howieson dated 30 April 2020, Annexure C), it is apparent that a crew member was swabbed for COVID-19 testing by the Ship's Doctor on the same day (see Voluntary Statement to the Special Commission of Inquiry into the Ruby Princess by the Commonwealth of Australia dated 12 June 2020, [173]). Inconsistencies were also apparent in the answers to the Biosecurity Questions given by the Ruby Princess on 8 March 2020 (as set out in paragraph [23] of these submissions).
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C. SUBMISSIONS IN RELATION TO RECOMMENDATIONS BY THE SPECIAL COMMISSION
68. As is apparent from the paragraphs above, the events of 8 March 2020 as well as 18 and 19 March 2020 have exposed a number of flaws in the systems and processes (and underpinning statutory framework) relating to the identification and mitigation of risks (such as biosecurity risks, including human health risks, and potentially other risks such as security risks) present on-board commercial vessels (whether carrying passengers or cargo) wishing to enter, and dock within, Sydney Harbour.153
69. At present, Port Authority confronts such risks faced with inadequate information.
70. For vessels docking in Sydney Harbour, Port Authority's pilot is generally the first human interaction from port side that a vessel will have. In practical terms, it performs an important "gateway" function for vessels entering Sydney Harbour (from international and domestic ports and locations). However, this critical enabling function is not reflected in either the information made available to it by other stakeholders or in the ambit of its statutory powers.
71. In the course of its attempts to protect its pilots (and other employees and contractors) from the risk of COVID-19 on 18 and 19 March 2020, Port Authority experienced repeated difficulty obtaining accurate and reliable information or any real-time data (being up-to-date information held by the ship and DAWE) in relation to the human health risks on-board the Ruby Princess at the time required by Port Authority (4 hours prior to pilotage). It was required to make numerous inquiries of Carnival employees as well as an array of NSW and Commonwealth government agencies. Given the seriousness of the potential health risks confronting it and the paucity of available information, Port Authority staff were placed in an invidious position that fell well outside the scope of their usual responsibilities. The inquiries undertaken by Port Authority staff created undue stress, were time consuming and diverted them from their core responsibilities.
72. Port Authority could not get access to critical information when it was necessary to do so to inform itself that it was safe to perform its functions, that is, to ensure it was safe to put a pilot on-board the Ruby Princess on 19 March 2020.
73. The current systems and processes ignore the important role Port Authority plays in ensuring safe navigation within the Harbour.
74. In light of this, Port Authority seeks to provide submissions to the Special Commission for its consideration when formulating the recommendations it will make at the end of this Inquiry. In doing so, it is seeking to ensure that the recommendations made by the Special Commission will lead to a more effective and transparent system being developed and implemented so as to avoid the pitfalls in the event that similar circumstances arise in the future. That is, a system which can cater for the range of risks that could confront Port Authority as well as other State and Commonwealth agencies given such risks have the potential to affect employee safety at work and have broader consequences, including jeopardising the efficient functioning of Australia’s ports.
75. In summary, Port Authority submits that there are a number of ways in which current systems and processes could be improved, including:
a. Access to real-time data regarding human health risks: the provision by the DAWE to Port Authority (and other stakeholder State and Commonwealth agencies) of access to detailed, real-time data regarding human health risks on-board vessels and the granting of pratique, for example:
153 In practical terms, these issues extend beyond the Port of Sydney to other Ports and berthing facilities within NSW and across Australia.
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i. that DAWE (and other stakeholder State and Commonwealth agencies) carry out assessments and inform Port Authority within 4 hours prior to pilot embarkation recognising the role of pilotage as the first human interaction; and
ii. a system which enables on-boarding of human health assessment teams and testing prior to pilotage to properly assess the human health risks on board vessels and before pratique is granted;
b. A central coordination and contact point within the Commonwealth: a central coordination point within the Commonwealth government (for example, within DAWE) who can provide information to Port Authority and to whom issues can be escalated 24 hours a day and 7 days a week for resolution by responsible Commonwealth and State government stakeholders;
c. Statutory powers to request information and prevent vessels coming alongside: statutory powers allowing Port Authority to:
i. compel the provision of information from vessels and port agents with sanctions if there is a failure to provide fulsome and/or accurate information to the satisfaction of Port Authority;
ii. prevent vessels from being granted access to a pilot and/or docking; and
d. additional considerations.
76. Each of these proposed improvements is addressed in turn below.
(a) Access to real-time data regarding human health risks
77. On a day-to-day basis, Port Authority relies on the grant of pratique by DAWE for assurance that a vessel does not pose a health risk to its staff in relation to pilotage and when bringing a vessel alongside the dock (see section 48(1) of the Biosecurity Act). If pratique is not granted and cannot be resolved, Port Authority is unable to supply pilotage.154
78. Accordingly, access to real-time data regarding the grant of pratique and any corresponding (human health) risks is critical to allow Port Authority to quickly and effectively identify issues and protect its staff,155 respond to queries156 as well as carry out its functions generally.
79. In determining whether to grant pratique, Biosecurity Officers (employed by DAWE) carry out an "inspection of a vessel, including in relation to human health risks" and rely on Human Health Reports and other information lodged electronically by vessels in the DAWE's MARS.157 They also rely on assessments performed by NSW Health Human Biosecurity Officers (HBOs),158 liaise with Home Affairs and the ABF, and may consult other stakeholders including Sydney Water Police and port agents. Port Authority staff are not involved in the granting of pratique in any way and do not receive MARS Human Health Reports except from the vessel on rare occasions.159
154 Statement of Steve Howieson dated 30 April 2020, [39]; Statement of Emma Fensom dated 5 May 2020, [35]. 155 And otherwise comply with its obligations under applicable work, health and safety laws. 156 Such as that received from NSW Ambulance on 18 March 2020 (see Statement of Steve Howieson dated 30 April 2020, [22]). 157 Voluntary Statement to the Special Commission of Inquiry into the Ruby Princess by the Commonwealth of Australia dated 12 June 2020, [48], [78]-[79]. 158 Voluntary Statement to the Special Commission of Inquiry into the Ruby Princess by the Commonwealth of Australia dated 12 June 2020, [23], [78]-[79]. 159 Statement of Steve Howieson dated 30 April 2020, [73].
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80. Port Authority receives pratique information via an internal computer system called ShIPS. Within ShIPS, there is a basic pratique function that is intended to notify Port Authority when pratique is granted by DAWE (ShIPS Pratique Function).160 The ShIPS Pratique Function is usually updated 24 hours before the scheduled arrival of a vessel.161 This is the extent of the information provided to Port Authority regarding the granting of pratique and any associated human health risks. The ShIPS Pratique Function does not currently:
a. provide visibility as to whether a vessel has been granted pratique despite health risks on-board (such as, for example, airborne diseases);
b. provide any commentary on human health risks on-board a vessel,the basis for granting pratique despite such risks and the proposed management of such risks;
c. provide source documentation regarding human health risks (such as Human Health Reports lodged on MARS or information on the assessment of a vessel as "low", "medium" or "high" risk by NSW Health); or
d. provide active monitoring or updates regarding changes to the status of human health risks on-board or the granting of pratique (for example, the deterioration of any human health risks in the 24 hours prior to the arrival of a vessel).
81. Port Authority submits that such information should be provided to it within ShIPS.
82. The ShIPS Pratique Function is only available for the ports of Sydney (Sydney Harbour and Port Botany) and Eden within the Ports that Port Authority holds responsibility for. Further, it is only available when a vessel first arrives from an international port. The ShIPS Pratique Function does not provide what could be important information in relation to human health risks (or other risks) that might arise or escalate once a vessel has already been granted pratique despite an identified human health risk (as was the case with the Ruby Princess)162 or in relation to a vessel that has already previously docked at another Australian port (for example, there is no information available for an international vessel that has already docked at Brisbane but then travels to Sydney).
83. This limited availability of real-time, accurate and detailed data is of serious concern to Port Authority. Port Authority respectfully submits that it should also be a serious concern to the Inquiry (as well as State and Commonwealth governments). As demonstrated earlier in these submissions, the lack of accessible information regarding human health risks aboard the Ruby Princess, and the lack of a central point for transparent information sharing set off a chain of events whereby Port Authority staff were required to make numerous, time-consuming inquiries in order to inform the decision as to whether to place a pilot on board and resolve concerns raised by NSW Ambulance, Home Affairs and ABF. Ultimately, the information provided to Port Authority was inadequate and it had no statutory powers upon which it could compel the provision of more detailed information from the vessel (to protect its staff from human health risks).163
84. Port Authority submits that after assessing the health risks on board a vessel, DAWE and/or NSW Health should provide or provide access to the following information within Port Authority’s port management systems, including ShIPS (which Port Authority can make available to other ShIPS users):164
160 The ShIPS pratique function contains a red coloured "P" which changes to a black coloured "P" when pratique is granted: see Statement of Steve Howieson dated 30 April 2020, [39]; see also paragraph 65(a) of these Submissions. 161 Statement of Steve Howieson dated 30 April 2020, [39]. 162 Voluntary Statement to the Special Commission of Inquiry into the Ruby Princess by the Commonwealth of Australia dated 12 June 2020, [104]-[113]. 163 Although there are powers available to the Harbour Master to compel information under Divisions 3 and 4 of the Marine Safety Act 1998 (NSW), as set out above, these powers relate to investigations into marine law compliance and marine accidents rather than the safety of Port Authority staff. 164 We submit that the provision of such additional information would be consistent with DAWE's statutory obligations under the Work Health Safety Act 2011 (Cth). It would also assist Port Authority to comply with its own statutory obligations.
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a. three levels of advice corresponding to the grant of pratique, ideally via a "traffic light system" or some other numbered or hierarchical system, including:
i. "Green" or "Level 1": the pilot and terminals may operate as normal and no precautions are required;
ii. "Amber" or "Level 2": a health risk has been identified. An "Amber" or "Level 2" notification would alert Port Authority that precautions are required to be taken for the identified health risk and provide recommended precautions, for example, the need to deploy PPE for both Port Authority pilots and Terminal staff and contractors (such as cleaners, security personnel, cruise operator personnel, Port Authority staff and ABF staff);
iii. "Red" or "Level 3": The vessel is denied pratique or entry into port for biosecurity and/or human health risk reasons;
b. information on the health of the crew including the Bridge team (and any recommended precautions for pilots or requirements for the vessel to self-isolate those members of the crew and/or Bridge team displaying relevant symptoms and sanitise the relevant areas);
c. information in relation to whether NSW Health (or another State or Commonwealth agency) will attend the vessel prior to pilotage or while at berth to conduct tests or for any human health risk related reason;
d. if the vessel is denied pratique or entry into port for biosecurity and/or human health risk reasons, a system should be established to enable on-boarding of human health assessment teams and testing prior to pilotage; and
e. an end-to-end outline of the process employed by DAWE Biosecurity Officers and NSW Health HBOs to grant pratique, including timelines for various decisions for each particular vessel.
85. In addition to receiving the above information via ShIPS, Port Authority also suggests that source information is provided regarding human health risks (including that underlying a "Green", "Amber" or "Red" advice), such as Human Health Reports and NSW Health documents or relevant extracts or summaries of same. In Port Authority's view, this documentation would be best provided by being included centrally within MARS, and by permitting Port Authority access to MARS. On receiving any "Green", "Amber" or "Red" advice on ShIPS, Port Authority staff could then access MARS for any additional information if and when required.
86. Port Authority seeks this information in relation to any vessel proposing to enter one if its ports, whether or not it is a first port of entry under the Biosecurity Act. Port Authority recommends that it has access to the same advice via their ShIPS as the first port of entry. This system could potentially be replicated nationally.
87. Port Authority appreciates that, to provide it with the additional information requested above, requires greater coordination between Commonwealth and State government agencies (for example, the Federal Department of Health and NSW Health), as well as a standardisation of reporting requirements and recommendations. At present, all Commonwealth and State agencies rely on obtaining this information from Daily Ships Programmes sent out by the vessel's port agents.165
88. Port Authority anticipates that it will also be necessary for there to be data sharing arrangements between ShIPS and other agencies. This could potentially be achieved by transferring the first port of entry status of any ship to the port management system of the subsequent declared ports and requiring the ship to communicate with Commonwealth and State health authorities any changes to the health status of the crew and passengers. It could also be achieved by allowing
165 Statement of Julie Taylor dated 12 May 2020, [9].
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for the sharing of source documentation with different ports in relation to each vessel visit via the extended MARS system described at paragraph 85 above.
(b) A central coordination and contact point within the Commonwealth
89. As set out at paragraph 77 above, the grant of pratique is determined by DAWE's Biosecurity Officers and requires coordination between Commonwealth agencies including Home Affairs and ABF. When granting pratique, DAWE relies on reports generated by NSW Health HBOs and may also consult various other stakeholders including NSW Water Police and a vessel's port agents.166
90. Generally, there is no direct communication between DAWE and Port Authority other than the data entered into the ShIPS Pratique Function (i.e. whether or not pratique is granted). Nor does Port Authority consult with other Commonwealth agencies or NSW Health. Rather, any concerns held by Port Authority regarding pratique or human health risks are communicated to, and resolved by, the vessel's port agents who in turn coordinate with the relevant Commonwealth or State government agency. This current practice places Port Authority entirely outside any formal inter-governmental information loop that may currently exist. This is inconsistent with its ability to discharge its functions given the critical role Port Authority plays in the arrival and departure of vessels in its ports.
91. In light of the various miscommunications that occurred on 18 and 19 March 2020, Port Authority holds concerns that there is no central point of contact at the Commonwealth level to which issues regarding human health risks can be raised and escalated. This is particularly so in circumstances where Port Authority staff are unable to contact a vessel's port agents or are faced with urgent queries about which they are not adequately equipped to respond. Given the nature of vessel movements, such a contact point would need to be available to address questions and issues on a 24 hours a day and 7 days a week basis. It is also critical that Port Authority is able to effectively communicate with that central Commonwealth coordination point in relation to conflicting information it may receive about human health risks or where concerns are held about the veracity of the information received from vessels or vessel's port agents (such as occurred in relation to the Ruby Princess).167
92. Port Authority agrees with the Special Commission168 that it would be appropriate for a standing arrangement to be established for communications between Port Authority and Commonwealth officers involved in the grant of pratique via a central point of contact. Ideally, the central point of contact would:
a. be within DAWE and have access to its Biosecurity Officers (due to the pivotal role played by DAWE in granting pratique and managing human health risks) or a Duty Manager, 24 hours a day and 7 days a week;
b. "spea[k] with a single voice" and provide a central line of communication in relation to any human health risks or other risks associated with the granting of pratique (or on-board vessels generally);169
c. be responsible for liaising with other agencies and stakeholders (such as ABF, Home Affairs and State Health authorities) so that queries directed to Port Authority about human health risks can be appropriately redirected and resolved;
d. be contactable 24 hours a day and 7 days a week via a duty officer who has access to the advice and underlying process employed to deliver information to ShIPS and the ShIPS Pratique Function;
166 Voluntary Statement to the Special Commission of Inquiry into the Ruby Princess by the Commonwealth of Australia dated 12 June 2020, Commonwealth Statement, [23], [48], [78]-[79]. 167 Statement of Steve Howieson dated 30 April 2020, [43], [60]. 168 Evidence of Cameron Butchart, Transcript of Hearing of the Special Commission (6 May 2020), T632.5-10. 169 Evidence of Cameron Butchart, Transcript of Hearing of the Special Commission (6 May 2020), T632.5-10.
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e. provide source documentation on request (such as Human Health Reports and documents from State Health authorities);
f. establish transparent guidelines and protocols for Port Authority and relevant stakeholders;
g. coordinate inter-agency meetings on a regular basis as well as training and scenario planning to test systems, processes and responses (including the practical implications and adequacy of any hierarchical advice system); and
h. communicate regularly and build relationships with Port Authority staff (and other stakeholders).
(c) Statutory powers to request information and prevent vessels coming alongside
93. In response to COVID-19, Port Authority implemented a procedure whereby vessels were required to respond to certain biosecurity questions before pilotage was supplied.170 Port Authority has no direct statutory basis to do this but adopted the procedure in an attempt to gather information to assess the work, health and safety risk for its pilots and terminal staff, and to consider the impact of COVID-19 on its operations.171
94. The fact that Port Authority does not possess such a statutory power meant that Port Authority was unable to compel a vessel to respond accurately or completely to its biosecurity questions, nor could it impose sanctions for a failure to comply. Nor could it obtain such information from a vessel's port agent. At most, Port Authority could delay or refuse pilotage services to a vessel (which only applied in circumstances where pilotage was required by a vessel).
95. Despite this, the practical reality is that the information requested from a vessel by Port Authority may be critical in assessing the risks to the safety of its staff and in allowing it to effectively carry out its functions and responsibilities once a vessel comes alongside a Port Authority berth.
96. Accordingly, Port Authority submits that it should be afforded certain statutory powers including, but not limited to, the following:
a. to require a vessel entering any one of its ports to provide further information directly to Port Authority (including by answering Biosecurity Questions affecting the safety of Port Authority staff) in order to assess the biosecurity risk associated with it to Port Authority staff (including, but not limited to, human health risks);
b. to require a vessel, at any time (or at the time it becomes aware) to report to Port Authority any material changes in relation to its status since the granting of pratique that may affect the safety of Port Authority staff;
c. to deny entry of a vessel to a port or prevent a vessel from coming alongside or to stop the vessel (on an emergency basis) if:
i. incomplete or incorrect information is provided to Port Authority;
ii. it is reasonably suspected that there is a risk to Port Authority staff or Port Authority generally; and/or
iii. additional time is needed to investigate potential risks (including resolving conflicting information in relation to biosecurity issues and human health risks) or where other concerns are held about the veracity of the information received
170 The biosecurity questions were first distributed to Port Authority staff on 2 February 2020 in the Coronavirus Working Guidelines (Guidelines) which were expanded upon in updated editions of the Guidelines on 5 February
2020 and 13 March 2020. 171 Statement of Emma Fensom dated 5 May 2020, [6].
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from vessels or vessel's port agents (this could include in relation to potential security concerns); and
d. to enforce penalties if a vessel (or its port agents) fail to comply with the requirement to provide information in a timely manner or if it provides inaccurate and/or misleading information.
97. Port Authority submits that this power should be provided in relation to any vessel entering into its ports, whether or not a first port of entry under the Biosecurity Act. Port Authority further submits that it would be prudent to confer these statutory powers on all State and Territory port authorities.
98. The purpose of such powers is not to challenge the granting of pratique by the DAWE. The granting of pratique is a separate decision and is the proper responsibility of the Commonwealth. Rather, the purpose of the powers proposed is to facilitate an additional safety measure whereby Port Authority is able to prevent a vessel from having access to the relevant port, provide pilotage or coming alongside (as appropriate) where it is concerned that it is not safe to do so. The further information provided by the vessel (if so required) would be considered by Port Authority in conjunction with its pratique status and any available data entered into the ShIPS Pratique Function in determining whether to exercise the discretion.
99. Port Authority submits that:
a. having access to real-time information regarding risks (including human health risks) and the granting of pratique prior to the provision of pilotage;
b. having access to a central Commonwealth coordination point; and
c. the conferral of the statutory powers described above,
is vital in order to:
d. reduce the risk of a recurrence of the events involving the Ruby Princess on 8, 18 and 19 March 2020; and
e. allow Port Authority to take a more active role in bringing its skills and expertise to bear in assisting with the assessment and treatment of risks which may have arisen (or escalated) since the granting of pratique to allow it to properly discharge its statutory functions.
(d) Additional considerations
100. In addition to the main submissions outlined above, Port Authority additionally submits that the Special Commission should consider making the following recommendations:
a. that where in circumstances of heightened risk for particular health conditions (such as for COVID-19 pandemic) that vessels are encouraged to have adequate swab and field testing capabilities;172 and
b. that DAWE and NSW Health staff should receive training on the role of Port Authority pilots, the 24 hours a day and 7 days a week nature of commercial ports, and the importance that pratique and health assessments be carried out 4 hours prior to the provision of pilotage (this could be conducted via joint exercises with Port Authority staff).
172 We acknowledge that the specifications for the Inventory to Sail which lists items that are mandatory before a vessel can sail are set at international maritime law.
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D. SUMMARY OF SUBMISSIONS
101. If Port Authority had access to relevant information, had a coordination point and possessed the statutory powers sought in these submissions, there is a real possibility that some of the tragic consequences arising from the docking and disembarkation of passengers from the Ruby Princess could have been avoided or, at the very least, minimised.
102. The implementation of the recommendations sought in these submissions would give Port Authority the information, resources and statutory powers it requires to perform its functions and fulfil its important role of ensuring the safe navigation of vessels within Sydney Harbour (and all of its ports). Sydney Harbour is a key entry point to Sydney and Australia. Port Authority performs a critical "gateway" function in relation to Sydney Harbour and other ports around NSW. The potential positive impact of the recommendations sought in these submissions in terms of ensuring the safety of those who interact with ports in NSW and across Australia from biosecurity risks, health hazards and other safety risks generally should not be underestimated.
Dated: 13 July 2020
Dr Ashley Tsacalos Partner Clayton Utz +61 2 9353 4282 [email protected]