In brief - cruise ships have struggled to disembark passengers and crew when they have not been permitted to call at certain ports
A number of these ships have been off the coast of Australia and have attracted considerable publicity, particularly Sydney and Fremantle.
The principle of free pratique is enshrined in various conventions to which Australia is a party and this is an opportune time to be reminded of the regimes that apply in Australia.
Firstly, Australia, and about 193 other countries, are members of the World Health Organization (WHO) and are bound by its International Health Regulations which were negotiated in Geneva in 2005, entered into force generally in May 2007 and applied in Australia on 15 June 2007. In section 2 of the National Health Security Act 2007 the Objects of Part 2 dealing with Public Health Surveillance it is said that one of the objects is to support the Commonwealth and States and Territories in giving effect to the International Health Regulations. The later Biosecurity Act 2015 identifies one of its objects under s.5(b) as being to "give effect to Australia's international rights and obligations including under the International Health Regulations and the Law of the Sea Convention. (Express reference is contained in the Biosecurity Act to one of those rights: the right of innocent passage (section 30).
The WHO International Health Regulations require States to report certain disease outbreaks and public health events to WHO. In addition, under Article 20 States are required to comply with, what are described in Annex 1 as, "Core Capacity Requirements for Surveillance and Response" at airports and ports.
Importantly these requirements include the provision of "Specialised staff, laboratory analysis of samples and logistical assistance (equipment, supplies and transport)". These requirements include, inter alia: the provision of access to appropriate medical service including diagnostic facilities located so as to allow the prompt assessment and care of ill travellers; to provide access to equipment and personnel for the transport of ill travellers to an appropriate medical facility; to provide appropriate public health emergency response by establishing and maintaining a public health emergency contingency plan; to provide assessment of and care for affected travellers by establishing arrangements with local medical facilities for their isolation, treatment and other support facilities and services that may be required; and to provide for the assessment and, if required, quarantine of suspect travellers.
Secondly, Australia is a party to the Facilitation of Maritime Traffic (FAL) Convention 1965 which entered into force in 1967. Australia acceded to it in 1986. That Convention makes recommendations concerning the ready availability "of medical facilities as may be reasonable and practicable for the emergency treatment of crews and passengers" (Annex to the Convention Section 6.9).
Thirdly, Australia has also ratified the IMO's MLC 2006 Convention and gave effect to it in the Navigation Act 2012 and Marine Order 11. In its guidelines at Guideline B4.1.3 the Convention provides in relation to "Medical Care Ashore" that seafarers should have access to hospitalisation where necessary and "Suitable measures should be taken to facilitate the treatment of seafarers suffering from disease. In particular, seafarers should be promptly admitted to clinics and hospitals ashore without difficulty and irrespective of nationality or religious belief".
Australia has also recognised its treaty and local law obligations in its 27 March 2020 Amendment Determination (No. 1) of the Biosecurity (Human Biosecurity Emergency) (Human Coronavirus with Pandemic Potential) (Emergency Requirements), pursuant to section 477(1) of the Biosecurity Act 2015.
By these recent provisions a cruise ship is banned from entering Australian territory or ports before 15 June 2020 unless:
- It has permission from the Collector of Customs; or
- It is exercising a right of innocent passage; or
- Its entry is necessary for securing the safety of the ship or saving life at sea; or
- The voyage commenced in Australia and is being conducted for the sole purpose of performing necessary maintenance to the ship (section 5).
By section 6 a foreign cruise ship is required to depart Australia if it is in Australia before 15 June 2020 unless:
- It has permission from the Collector of Customs to remain; or
- It is exercising a right of innocent passage; or
- Its entry is necessary for securing the safety of the ship or saving life at sea.
It is that latter exception which appears to recognise the obligations which Australia has pursuant to the WHO Regulations, the FAL Convention and the IMO MLC Convention to sick passengers and crew.
The disembarkation of sick crew members recently from the Ruby Princess cruise ship in Sydney suggests that Australian authorities recognise their international and humanitarian obligations in balancing them with their obligations to their own citizens. There are three further considerations to be taken into account in that balancing act including:
- Australian passengers overseas on cruise ships no doubt hoping that foreign governments recognise their obligations;
- Australia's dependence on the carriage of goods by sea and international trade; and
- The ever growing significance of the cruise industry to the Australian economy (recently quoted as a $5.2 billion contributor).
This is commentary published by Colin Biggers & Paisley for general information purposes only. This should not be relied on as specific advice. You should seek your own legal and other advice for any question, or for any specific situation or proposal, before making any final decision. The content also is subject to change. A person listed may not be admitted as a lawyer in all States and Territories. © Colin Biggers & Paisley, Australia 2021.