A helping hand for Australian parliamentarians struggling to understand the proposed changes to the International Health Regulations

Senator Ralph Babet is one of few parliamentarians who actually understand the extent to which these changes will tie us to following the WHO’s lead in the next pandemic

Sadly, the WHO does not have a monopoly on making false claims regarding proposals to seize States’ sovereignty.

On 7 September 2023, in the Australian Senate, Senator Ralph Babet asked some questions on notice of Senator Katy Gallagher, about the various negotiations going on to give the World Health Organisation more power:

1.     the WHO's article 59 International Health Regulations amendments

2.     the UN's pandemic preparedness and response political declaration

3.     the WHO's proposed 307 International Health Regulations (IHR) amendments and

4.     the WHO CA+ (this last one is sometimes called the pandemic treaty)

Having had the questions on notice, Senator Gallagher came prepared, as you’d expect, with a document from which she read out her answers. Below is an extract from the parliamentary record of what she said. I’ve annotated it with my commentary.

Unfortunately there continues to be confusion about what changes each of the 4 documents listed above will bring about.  In particular, there’s confusion between the 3^rd and 4^th (the 307 amendments to the IHR, and the pandemic treaty).  In my opinion, and contrary to the reassurances given by Senator Gallagher, it is clear that the proposed amendments to the International Health Regulations will indeed undermine Australia’s sovereignty over our health policy.  This is a huge issue we all need to be crystal clear about!

Here's the extract from Hansard, with my commentary inserted throughout.

Health Care

Senator BABET (Victoria—United Australia Party Whip) (14:51): My question is to the Minister representing the Minister for Health, Senator Gallagher. Minister, are you aware of the status of the WHO's article 59 International Health Regulations amendments and the three other substantive pandemic preparedness documents, the UN's pandemic preparedness and response political zero declaration draft, the WHO's proposed 307 International Health Regulations amendments and the WHO CA+?

Senator GALLAGHER (Australian Capital Territory—Minister for the Public Service, Minister for Finance, Minister for Women,Manager of Government Business in the Senate and Vice-President of the Executive Council) (14:52): I thank Senator Babet for the question and for the advance warning of his question. I appreciate that. I am aware of those documents.

The government is committed to strengthening international cooperation on pandemic preparedness and reflecting the lessons learned from the global response to ensure that we are well placed to deal with challenges that come in the future. We are actively engaged in three separate but linked negotiations on an international instrument on pandemic prevention preparedness and response, amendments to the International Health Regulations 2005 and the Political Declaration of the United Nations General Assembly's High-level Meeting on Pandemic Prevention, Preparedness and Response. The negotiations on the pandemic instrument and amendment to the International Health Regulations are currently underway and are due to conclude in May next year. It is anticipated that a final version of the political declaration will be adopted by member states at a high-level meeting on pandemic prevention, preparedness and response in New York later in September. These processes are part of an overall package intending to strengthen international cooperation to minimise the risk that international health threats such as COVID-19 can pose to Australia. We know that global health threats are most likely to arise overseas, and having a strong global health system will help ensure Australia and the world are better prepared for the future.

Then Senator Gallagher makes this very big statement:

Let me be clear that the proposed treaty will not undermine Australia’s sovereignty in respect to health policy and will not operate to prevail over Australian law.

It may be true that the TREATY won’t undermine Australia’s sovereignty in respect to health policy or prevail over Australian law.  But the INTERNATIONAL HEALTH REGULATIONS certainly will (if amended as proposed in May 2024), as explained here.

Senator Gallagher continues:

The WHO and UN have no legal authority to force Australians to take any action, and any negotiated commitments would need to be reflected in Australian laws passed by this parliament for them to become legally binding.

It may be true currently that the WHO and UN have no legal authority to force Australians to take any action.  However, the Australian government proposes to give that authority to the WHO, through the proposed amendments to the International Health Regulations (IHR). Those amendments would oblige Australia to follow the WHO’s legally binding “recommendations.” Four of the proposed amendments to the IHR - reproduced below - will render the recommendations binding. (New text to be inserted into the IHR is in bold and underlined; and items to be removed are shown struck through.  The yellow highlighting is mine, for emphasis.)

Article 1 - Definitions

The WHO will be able to make legally binding recommendations about all sorts of things, including in relation to lockdowns, lockups and vaccination:

Australia already has provisions in our Biosecurity Act 2015 (Cth) empowering the Health Minister to determine “emergency requirements” and issue public health “directions” in order to implement WHO recommendations:

And we already have at least some of the necessary State legislation in place, for example in Western Australia the  Public Health Act 2016 purports to make it legal for force to be used to vaccinate someone:

So yes, we may need to pass some new domestic legislation, but on the other hand we already have some key pieces of the legislative puzzle in place.  And to the extent that we DO need to amend domestic laws, the Bills to amend those statutes won’t necessarily even mention the World Health Organisation, so unwitting parliamentarians who don’t realise the consequences might pass them without much debate, unaware that the changes will facilitate complete control by the WHO over our public health responses.

To recap: we’ll be bound to follow the WHO’s “recommendations” by the IHR, and our domestic legislation already largely enables us to do so.

Senator Gallagher seems to anticipate some big legislative program that will be necessary in order to implement any “negotiated commitments”. I wonder if she’s referring here to commitments under the pandemic treaty, for example in relation to vaccine manufacturing capability. In relation to the transfer of power to dictate public health policy - which happens under the IHR rather than the treaty - there are no negotiated commitments to worry about, only binding public health diktats to follow.

More from Senator Gallagher:

The government commenced an online public consultation on 7 August 2023 to allow interested Australians the ability to contribute their views on the proposed agreements.

Details of the government’s consultation are available here.  Submissions closed 24 September 2023. We have not yet seen the government’s promised “analysis of the responses provided”.  I have asked the Australian Government (Department of Foreign Affairs and Trade) by email on 29 October 2023 whether and when it proposes to publish submissions but have not had an answer.

The discussion in parliament continued:

The PRESIDENT: Senator Babet, a first supplementary [question]?

Senator BABET (Victoria—United Australia Party Whip) (14:54): Thank you, Minister. I think I know what you're going to say next. Are you aware of article 59 item 3 of 2005 IHRs, which is repeated unamended in the article 59 International Health Regulations amendments? Do you agree that this subarticle places a positive requirement on Australia to amend our domestic legislation inaccordance with any future IHR amendments if those amendments are not rejected by Australia?

Senator GALLAGHER (Australian Capital Territory—Minister for the Public Service, Minister for Finance, Minister for Women,Manager of Government Business in the Senate and Vice-President of the Executive Council) (14:54): I thank the senator for the question. The impact of amendments to article 59 are procedural in nature. They reduce the period of time for entry into force for anyfuture amendments to the IHR. They do not change Australia's treaty-making or domestic legal processes. Australia does not and willnot support any amendments to the IHR that are against our national interest.

Has Senator Gallagher been misled by her advisors? She has missed the point of the question, despite having had the question on notice, and despite having been provided with a detailed written answer to read out.

Senator Gallagher insists that “the impact of the amendments to article 59 are procedural in nature. They reduce the period of time for entry into force for any future amendments to the IHR.”  But Senator Babet is asking about paragraph 3 of Article 59, which deals with the obligations of States such as Australia to pass the necessary domestic legislation in order to comply with the IHR. The text of that paragraph (incorporating amendments adopted in 2022) is:

3. If a State is not able to adjust its domestic legislative and administrative arrangements fully with these Regulations or an amendment thereto within the period set out in paragraph 2 of this Article, as applicable, that State shall submit within the period specified in paragraph 1 or 1bis of this Article a declaration to the Director-General regarding the outstanding adjustments and achieve them no later than 12 months after the entry into force of these Regulations for that State Party.

Senator Babet is onto something here. He is pointing out that Australia will be obliged to pass domestic legislation if and as necessary in order for Australia to be able to comply with the IHR, including implementing any binding recommendations that the WHO may issue under those IHR. So to the extent we haven’t already got the necessary legislation in place, we will be legally obliged to pass domestic legislation.

Senator Gallagher goes on:

Countries retain sovereignty over all their health policies including public health and safety measures such as broader measures, use of masks and vaccines.

This is correct only in a very limited, technical sense.  Yes, Australia will continue to be able to decide its own health policy – but if we decide something different to what the WHO recommends, we will be in breach of our legal obligations under the IHR.  We can expect our officials to say, as Chief Medical Officer at the time Brendan Murphy did during the COVID crisis, that people don’t understand, we HAD TO DO IT IN ORDER TO COMPLY WITH THE IHR. (Unfortunately I can’t find the video of the interview in which he said that, or words to that effect, but I remember it clearly. He was a little grumpy and frustrated that people don’t realise Australia already has obligations under the IHR.)

We will be obliged on two levels:

• pass any legislation to enable us to legally enforce the WHO’s recommendations

• comply with the WHO’s recommendations.

If that’s not giving away our sovereignty over our health, I really don’t know what is.

Senator Gallagher continues:

Any negotiated commitments that need to be reflected in Australian laws have to be passed by this parliament for them to becomelegally binding, and article 59 does not alter this.

No, the Australian parliament will NOT have to pass legislation for the obligations under the IHR to become legally binding. Amendments to the IHR come into force unless our nation proactively rejects them. The Federal government supports them, so has decided not to reject them. The upshot is: no decision is required for Australia to become bound by the proposed IHR amendments. (This is in contrast to the pandemic treaty – which does require a decision – but even then, it is the executive arm of government, and not the parliament, that has power under our constitution to enter into the treaty.). See further here and here.

(The heroic Senator Babet then goes on to question Senator Gallagher on indemnities for vaccine manufacturers. )

So…don’t be fooled by false reassurances that we can wait until someone rings a bell in parliament to ask our representatives “Should we transfer our health sovereignty to the WHO?” This is not going to happen. By the time it gets to a parliamentary vote on one or other pieces of implementing legislation, it will be too late - Australia will already be bound to follow the WHO’s public health directives.

The time to object is right now. Dash off a very quick submission to Australia’s COVID-19 Response Inquiry - deadline tomorrow Friday 15 December 2023. And follow here and here for ongoing campaigns.