Today’s correspondent says:

Australia has an established emergency service and healthcare system and has been fortunate to only draw on international assistance on a small number of occasions in the past 10 years, and when it has, has usually been under the auspice of fire and incident management personnel for large scale bushfires. This said, there are moves afoot to develop a framework/plan that seeks to support the receiving of international support across a range of areas, including healthcare and medical service. Internationally there are formal and informal mechanisms of support, ie Formal – WHO verified Emergency Medical Teams (EMT) and INSARAG verified USAR teams that have para/medical personnel embedded within

I would be keen to know of your views as to the existing barriers and opportunities that might preclude a timely entry and deployment for international healthcare professionals to deploy within Australia? Also, what if someone were not a [protected title] paramedic, but other level of (para)medical level within the USAR team.Does the National Emergency Declaration (NED) assist in breaking down any existing regulatory issues.?”

That’s a great question. I’m sure someone could write a PhD answering that … oh hang on, I did – see Michael Eburn, Australia’s International Disaster Response – Laws, Rules and Principles (PhD thesis, Monash University, 2009, available at https://figshare.com/articles/thesis/Australia_s_international_disaster_response_laws_rules_and_principles/4546003).

International Disaster Response Law Guidelines

Just when I started by PhD the International Federation of Red Cross and Red Crescent Societies (the IFRC) published a report – David Fisher, Law and Legal Issues in International Disaster Response: A Desk Study (International Federation of Red Cross and Red Crescent Societies, Geneva, 2007).  This report identified many issues that the Red Cross/Red Crescent movement had identified over their many years of providing international disaster relief assistance. The identified common problems in the areas of:

a. initiation and termination of the international response;

b. goods and equipment (including issues of inappropriate aid and delays in getting humanitarian supplies into an affected country due to customs, transport or administrative barriers);

c. personnel (including issuing visas and recognition of professional qualifications);

d. transport and movement around the disaster area;

e. operational matters (such as establishing an office, opening bank accounts and employing staff);

f. quality and accountability; and

g. the coordination of international responders.

To assist countries the IFRC published the Guidelines for the Domestic Facilitation and Regulation of International Disaster Relief and Initial Recovery Assistance (the IDRL Guidelines). These guidelines were intended to help countries identify whether their domestic laws were sufficient to deal with the sort of issues so that, if they needed international disaster assistance, it could be received. My PhD benchmarked Australian law against the IDRL Guidelines.  My conclusion (at p. 306) was:

Australia lacks a ‘comprehensive legal, policy, and institutional frameworks and planning for disaster prevention, mitigation, preparedness, relief and recovery’. The Commonwealth disaster plan envisages that the Commonwealth’s role will be reactive, to provide support to the states, rather than take a significant leadership role. Australia’s disaster arrangements are largely silent on when and how international assistance may be sought, and the assumption in key planning documents and customs and immigration policy is that the normal rules will continue to apply during a disaster…

To assist countries to make laws to address the issues raised, the IFRC published a model Act and regulations that countries could adopt, or use as a model, in writing their own legislation (see https://disasterlaw.ifrc.org/media/1772).  (And, an important disclaimer, I was part of the expert panel that advised the IFRC on the terms of that Act and its model regulation).

The National Emergency Declaration Act 2020 (Cth)

Australia still lacks comprehensive national emergency management legislation. The National Emergency Declaration Act 2020 (Cth) was passed whist the Royal Commission into National Natural Disasters was still sitting. It pre-empted the recommendations from the Royal Commission about the need for such legislation and what it might contain, and what it might do – see Federal Parliament passes the National Emergency Declaration Bill 2020 (December 15, 2020) and Michael Eburn, ‘The Royal Commission and the Australian Constitution’ (2021) 36(1) Australian Journal of Emergency Management 5-10. At p. 8 I said:

The [National Emergency Declaration] Act, as passed, says nothing about Commonwealth power to manage an emergency nor does it appoint a federal coordinating officer to coordinate the entire Commonwealth government response. There is no link between the declaration and natural disaster relief and recovery funding or the use of the ADF as provided for by the Defence Legislation Amendment (Enhancement of Defence Force Response to Emergencies) Act 2020 (Cth). The Act does not empower the Commonwealth to take the lead in the response or direct the states how to manage the emergency occurring in their jurisdiction.

The National Emergency Declaration Act allows the Governor-General, on the advice of the Prime Minister to make a declaration of a national emergency. Whilst that declaration is in effect a Minister may waive requirements:

… that requires or permits any of the following matters (a relevant matter):

(a) the giving of information in writing;

(b) the signature of a person;

(c) the production of a document by a person;

(d) the recording of information;

(e) the retention of documents or information;

(f) the witnessing of signatures;

(g) the certification of matters by witnesses;

(h) the verification of the identity of a person;

(i) the attestation of documents;

(j) the reporting or notification of a matter to a Department, agency or authority of the Commonwealth.

Where there is other legislation (defined as a national emergency law; s 10) that gives a Minister the power to do something in an emergency, then the declaration under the NED Act is sufficient authority to Act.For example, the Social Security Act 1991 (Cth) provides for the payment of a Disaster Recovery Allowance. On criterion for the award of that allowance is that the Minister has determined that the event is a ‘major disaster’ (s 1061KA(1)(c)). To declare a ‘major disaster’ the Minister must be satisfied (s 36A(1)) that:

(a) the event is a disaster that has such a significant impact on one or more industries and/or one or more areas that a government response in the form of income support is required; and

(b)       either:

(i)         the event is of national significance; or

(ii)        if a national emergency declaration (within the meaning of the National Emergency Declaration Act 2020) is in force–the event is an emergency to which the declaration relates.

The effect is that when a national emergency declaration is in force the Minister responsible for social security does not have to decide that the event is of ‘national significance’ and they can waive requirements like the applicant for disaster recovery allowance must present 100 points of identification or have their application witnessed by a Justice of the Peace.  Largely insignificant when it comes to responding to a catastrophic natural disaster (see Commonwealth declares a national emergency (April 1, 2022).

Visiting militaries and sport teams

With respect to incoming health practitioners Australia does have status of forces agreements that allow visiting militaries to bring their medical teams with them. There is also legislation, for example the Health Professionals (Special Events Exemption) Act 1997 (NSW) that allows participants in declared special events to bring their own medical staff. One can imagine that such declarations are probably in force for the FIFA World Cup currently being played in Australia to allow the visiting teams to have their own doctors, physios etc.  These provisions are however intended to allow the visiting militaries and sports teams to bring their medical staff to treat their own members. Not to provide medical services to the Australian community.

The role of the Commonwealth and the states/territories

Notwithstanding there is a health practitioner regulation national law, it is in fact not a national law. Each state has had to pass legislation to either mirror, or adopt, the Health Practitioner Regulation National Law as passed by the Queensland parliament.  The Commonwealth is not involved in the recognition of or registration of health care professionals.

The Emergencies Act 2004 (ACT) has specific provision for international and interstate assistance. Section 180 provides that if a foreign or interstate specialist providing emergency services in the ACT pursuant to a ‘cooperative agreement’, then he or she is deemed to hold the required ACT qualification or registration to allow them to do their work. This is an example of the sort of law that could be passed to facilitate international relief assistance.

Remember that the health practitioner regulation national law does not restrict or proscribe practice. It merely proscribes the use of a protected title in a way that suggests someone is registered under the Australian law. If a doctor, nurse or paramedic was working in a uniform that clearly identified that they were from a foreign agency or government that may mean they are not in breach of the Health Practitioner Regulation National Law.   But that doesn’t mean they would have any authority to carry, prescribe or administer drugs.

I think, in the context of international disaster assistance and accepting help form international agencies and other governments, the commonwealth could pass relevant laws. The Commonwealth could rely on its power to make laws with respect to external affairs (Australian Constitution s 51(xxix)) and the ill defined ‘nation hood’ power that is the power to make laws on subjects that because of their size or nature are uniquely within the responsibility of the Commonwealth (and a catastrophic disaster would fit that definition – see Pape v Federal Commissioner of Taxation [2009] HCA 23 see also Michael Eburn, ‘Responding to Catastrophic Natural Disasters and the Need for Commonwealth Legislation’ (2011) 10(3) Canberra Law Review 81) and What is a ‘national emergency’? (December 25, 2019)).

The Commonwealth could pass legislation to facilitate the recognition of foreign qualified health professionals who are providing international disaster assistance, but it has not done so. Nor is there legislation to ensure that those who do offer assistance are accountable for their actions so that if a person receives poor care from a visiting medical team they know who they can complain to, who (if anyone) is to provide a remedy and whether AHPRA or a relevant Board can prohibit that person from further work in Australia. 

Conclusion

My view is that legally, Australia is ill prepared to facilitate ‘a timely entry and deployment for international healthcare professionals’. My guess is that they would be allowed to come in and work and no-one would pay too much attention to the legal niceties but that is not best practice given since at least 2007 the problems have been identified and solutions suggested.  

The National Emergency Declaration (NED) Act will do nothing to assist in breaking down any relevant existing regulatory issues.

This blog is made possible with generous financial support from the Australasian College of Paramedicine, the Australian Paramedics Association (NSW), Natural Hazards Research Australia, NSW Rural Fire Service Association and the NSW SES Volunteers Association. I am responsible for the content in this post including any errors or omissions. Any opinions expressed are mine, and do not necessarily reflect the opinion or understanding of the donors.