transcript of proceedings · .ruby princess inquiry 9.6.20r1 p-907 s. tobin xn mr beasley sc until...

.RUBY PRINCESS INQUIRY 9.6.20R1 P-904

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TRANSCRIPT OF PROCEEDINGS

O/N H-1215178

MR B. WALKER SC, Commissioner

IN THE MATTER OF A SPECIAL COMMISSION OF INQUIRY

INTO THE RUBY PRINCESS

SYDNEY

9.31 AM, TUESDAY, 9 JUNE 2020

Continued from 11.5.20

DAY 8

MR R. BEASLEY SC and MR N. KIRBY appear as counsel assisting the Commission

MR D. McLURE SC appears with MR G. O’MAHONEY for Princess Cruise Lines

Ltd and Carnival plc t/a Carnival Australia

MS G. FURNESS SC appears with MS K. LINDEMAN for the Health Administration

Corporation

MS J. FRANCIS appears for the Commissioner of Police

MS B. BYRNES appears for the International Transport Workers’ Federation, the

Maritime Union of Australia, the Australian Institute of Marine Powered Engineers

and the Australian Maritime Officers Union


COMMISSIONER: We will resume, please.

MR BEASLEY: Just before we commence, just a couple of housekeeping matters

from my friend. I’ve just told Ms Furness, whose client, Health, has served on us

some additional statements over the weekend, that those witnesses are likely not to 5

be required, at least by me, to give oral evidence and that their statements will be

tendered. But I’ve told my friend that we will make a final decision upon that on

Thursday.

COMMISSIONER: Can we adopt this procedure with them and with anyone else in 10

a similar position: as soon as a decision is made by us as to whether they can be

published and, if necessary or if it turns out this way, in advance of them actually

been tendered, can they be made available to those parties to whom leave to appear

has been granted so that they can, in good time, inform us through you whether

anyone wishes to have the opportunity to question them beyond their written 15

statements?

MR BEASLEY: Yes, that is happening. Which brings me to the fact that, since we

last had a public hearing, the New South Wales Police have supplied the inquiry with

hundreds of statements taken from passengers on the ship. The current proposal is 20

that those statements will be tendered, but they’ll be circulated to all the parties first

with a view to them indicating whether they would wish to make either a submission

about them or whether they would wish a particular passenger to be called if their

statement is going to be tendered. There will be oral evidence from some

passengers, but obviously not in the hundreds, which is obviously not feasible given 25

your time constraints and it wouldn’t be a good idea in any event. But all of that is in

train. As I said, those statements will be supplied to the interested parties. And then

we’ll notify them of a proposed witness list. And they’ll have an opportunity to say

we would prefer that another person is also called so we can ask some questions

about their statement. 30

COMMISSIONER: Mr McLure, we at the Commission, have given thought to the

position of your clients in that regard. I don’t mean this to indicate any view I have

of any of that material which I haven’t examined. But it is always possible for the

guests of a hotel or the passengers on a cruise ship to have some comments 35

afterwards that might interest the management, sometimes because they might be in

the nature of complaints. I take the view that, within my terms of reference, those

are therefore matters that your clients may have, if you like, a prior or stronger claim

than anyone else to be considered in terms of procedures we adopt. As Mr Beasley

has pointed out, the numbers are such as to defeat the available time for hearing and 40

reporting. But I’m determined that I will not truncate the opportunities your client

should have. Could I ask you just to turn your imagination and ingenuity to how we

deal with that.

MR McLURE: Yes. 45


COMMISSIONER: There are a number of different ways. If there’s anybody else

here representing a party to whom leave has been given who thinks that what they

imagine some passengers may say would be of interest within the terms of the

Special Commissions of Inquiry Act and procedural fairness, could they please be in

touch with Mr Beasley out of session so that we can expedite the rather difficult 5

planning of evidence – that’s what I’ll call it at the moment – evidence from

passengers. Thank you.

MR BEASLEY: That reminds me, Commissioner. We have also received over the

weekend an application I don’t intend to address in detail at the moment from the 10

Port Authority asking for you to give consideration about summonsing certain

persons from Carnival, at least one of which has received a summons to give

evidence. That’s a matter that I won’t say anything further about - - -

COMMISSIONER: Thank you. 15

MR BEASLEY: - - - because we need to give some consideration to that later in the

week.


MR BEASLEY: We’ve also received some further statements from the Port

Authority and the intention is to simply tender those statements without requiring

any of the people that have given the statements to give oral evidence. I think those

statements have been circulated. So if anyone’s got a view that they do want to make 25

an application to ask those witnesses some questions, they will no doubt let us know.

COMMISSIONER: Well, again, if I can just address this to the room generally: if

you don’t think you have those statements circulated, please be in touch with Mr

Beasley about that. And if we could close off on the possibility of any applications 30

for those persons to be actually called for further questioning, which is subject, of

course, to a grant of leave.

MR BEASLEY: Yes. I misspoke earlier when I said the Port Authority had made

an application. I should have said the Maritime Union have made an application - - - 35

COMMISSIONER: Thank you.

MR BEASLEY: - - - for certain witnesses from Carnival to be summonsed.

40


MR BEASLEY: So I correct that. That leaves us to the witnesses we have for

today, tomorrow and Monday. The four witnesses in those three days are the four

people – four medical experts that were part of the New South Wales health 45

assessment team in relation to the assessment of risk on the Ruby Princess. The first

witness today is Dr Sean Tobin. Tomorrow is Professor Ferson. We then adjourn

.RUBY PRINCESS INQUIRY 9.6.20R1 P-907 S. TOBIN XN

MR BEASLEY SC

until Monday, the 15th, when we have Dr Hess. There is another witness who’s been

summonsed – and I won’t say anything about that witness at the moment. There is

an application that was made to you in relation to that witness on Friday. And that’s

an ongoing process at the moment. And we’re waiting to hear back from Health in

relation to what might occur there. 5


MR BEASLEY: So I think we have Dr Tobin.

10

MS FURNESS: We do. Just before Dr Tobin, Commissioner, I seek leave to

appear for Dr Tobin.

COMMISSIONER: You have that leave.

15

MS FURNESS: Thank you, Commissioner.

<SEAN TOBIN, AFFIRMED [9.39 am]

20

<EXAMINATION-IN-CHIEF BY MR BEASLEY SC

MR BEASLEY: Dr Tobin, my name’s Richard Beasley. I’m one of the counsel 25

assisting the inquiry. You’ve supplied to us, through your legal representatives, a

signed statement dated 29 May 2020. Do you have a copy of that statement with

you?

DR TOBIN: I do. 30

MR BEASLEY: And save, I think, for a correction you wish to make to paragraph

101, is that statement true and correct to your best knowledge and belief?

DR TOBIN: Yes. 35

MR BEASLEY: What is the correction you would like to make at paragraph 101? I

think there’s a calculation correction you wish to make?

DR TOBIN: That’s right. In point 2, the calculation, where it says 11 should be 10. 40

MR BEASLEY: Yes.

DR TOBIN: And the result of that calculation in point 3 should be 52.37.

45

MR BEASLEY: 52.37.


MR BEASLEY SC

DR TOBIN: Yes.

MR BEASLEY: Thank you. In your statement, which I will tender, Commissioner.

In you statement, you have reference to a number of documents that form annexures

to a bundle of documents that was provided with your statement which is entitled 5

Annexures to New South Wales Health Witness Statements. Do you have a copy of

that bundle with you?

DR TOBIN: Yes.

10

MR BEASLEY: Commissioner, can I tender the statement of Sean Tobin, dated 29

May 2020.

COMMISSIONER: Yes.

15

MR BEASLEY: Which I believe is now Exhibit 28.

COMMISSIONER: Yes.

20

EXHIBIT #28 STATEMENT OF SEAN TOBIN DATED 29 MAY 2020

MR BEASLEY: And I’ll also tender the folder of Annexures to New South Wales

Health Witness Statements, which should become Exhibit 29. 25


EXHIBIT #29 ANNEXURES TO NSW HEALTH WITNESS STATEMENTS 30

MR BEASLEY: Dr Tobin, you describe yourself as a public health physician. And

you’ve told us that you’re currently employed in the Communicable Diseases Branch

of Health Protection New South Wales; that’s a unit of the Ministry, is it? 35

DR TOBIN: Yes.

MR BEASLEY: And you say you:

40

…manage a small team responsible for surveillance and control of most

notifiable respiratory infections.

When you say a “small team”, what are you talking about there in terms of numbers?

45

DR TOBIN: Two other people.


MR BEASLEY SC

MR BEASLEY: Two other people. All right. And are they both physicians like

you?

DR TOBIN: No. They’re epidemiologists.

5

MR BEASLEY: All right. And when you say “notifiable respiratory infections”,

you’re talking about diseases notifiable under the Public Health Act?

DR TOBIN: Yes.

10

MR BEASLEY: Yes. All right. You also say that you’ve since – it was only since

January of this year that you were asked to give assistance to those medical

professionals in the Public Health Unit of South East Sydney that deal with what’s

called the Cruise Ship Program.

15

DR TOBIN: Yes, yes.

MR BEASLEY: Was that the first time you’d been involved in giving advice to the

medical professionals in the Cruise Ship Program or had you been giving ongoing

advice in relation to that over the years? 20

DR TOBIN: Just very occasionally I had been involved in – when issues were

raised about cruise ships and particularly when there was a concern about respiratory

diseases.

25

COMMISSIONER: I’m sorry. I can hardly hear you.

DR TOBIN: Sorry. Sorry. Very occasionally, I was consulted by the South East

Sydney Public Health Unit in issues sometimes around flu outbreaks, sometimes

around individual diseases, but fairly rarely. 30

MR BEASLEY: When you say sometimes you were consulted by the people

involved in the Cruise Ship Program at that South East Sydney. I think it’s the South

East Sydney Local Health District Public Health Unit, if you say every word. I’ll

just use Public Health Unit, if you don’t mind. When you say you were asked to – 35

you were consulted from time to time – and you did mention, for example, influenza

outbreaks on cruise ships, which happen from time to time – what sort of advice was

sought from you?

DR TOBIN: At times it was advice. At times was merely notifying us, as the State 40

coordinating body about – and because we have a State-wide role in influenza

surveillance and, occasionally for specific issues are a little bit unusual, for example,

a Legionnaire’s disease case, and they would seek our advice on - - -

MR BEASLEY: How to manage?--- 45

DR TOBIN: - - - how to manage.


MR BEASLEY SC

MR BEASLEY: Right. All right.

DR TOBIN: Yes.

MR BEASLEY: In terms of risk assessment for notifiable diseases or 5

communicable diseases, was your – the role you played in February and March of

this year assessing the risk of COVID-19 on cruise ships the first time you’d been

involved in a risk assessment of that kind?

DR TOBIN: Yes. Yes. 10

MR BEASLEY: All right. Okay. You are also the Chief Human Biosecurity

Officer of New South Wales; correct?

DR TOBIN: Yes. 15

MR BEASLEY: And you’ve been – you were appointed to that position in

September of last year.

DR TOBIN: Yes. 20

MR BEASLEY: And I think you replaced Dr Sheppeard.

DR TOBIN: That’s right.

25

MR BEASLEY: You have outlined in paragraphs 8 and 9 of your statement some

of your role as the Chief Human Biosecurity Officer, but you’ve said in paragraph 10

when you sat on these health assessment panels for assessing the risk of COVID-19

in particular, what we’re here for, assessing the risk of COVID-19 on the Ruby

Princess, you didn’t feel as though you were sitting on that panel wearing your hat as 30

the Chief Human Biosecurity Officer; is that right?


MR BEASLEY: Is there a reason you want the Commissioner to know that? 35

DR TOBIN: I suppose, you know, the term “Chief Human Biosecurity Officer” can

be interpreted in many ways, and I just wanted to - - -

COMMISSIONER: Isn’t it just a statutory term? 40

DR TOBIN: Sorry. I’m not sure.

MR BEASLEY: Let me help you.

45

DR TOBIN: Yes.


MR BEASLEY SC

MR BEASLEY: You understand that you were appointed as the Chief Human

Biosecurity Officer by the Director of Human Biosecurity, which is a

Commonwealth position?

DR TOBIN: Yes. 5

MR BEASLEY: Correct?

DR TOBIN: Yes.

10

MR BEASLEY: And so you were appointed through a statutory process under a

piece of Commonwealth legislation, that is, the Biosecurity Act?

DR TOBIN: Yes.

15

MR BEASLEY: And I’m certainly not going to cross-examine you about the

Constitution of Australia, but you understand that it’s the Commonwealth – you have

a general understanding that it’s the Commonwealth that’s got the quarantine power,

the migration power, the customs power?

20

DR TOBIN: Yes.

MR BEASLEY: Are you familiar at least to some degree with the arrangement,

almost contractual type arrangement, between the Commonwealth and the State of

New South Wales for the provision by people employed in New South Wales Health 25

to give biosecurity advice to the Commonwealth, in particular, the Department of

Agriculture, Water and the Environment?

DR TOBIN: Yes.

30

MR BEASLEY: Have you actually seen that agreement?

DR TOBIN: Yes.

MR BEASLEY: All right. When you were appointed the Chief Biosecurity Officer 35

– Human Biosecurity Officer, what information did the Commonwealth give you as

to what your role was? Were you given a job description with a list of duties as an

example?

DR TOBIN: No, I wasn’t. 40

MR BEASLEY: Were you given a copy of the agreement between the

Commonwealth and New South Wales?

DR TOBIN: I had previously seen that agreement. 45

MR BEASLEY: Yes.


MR BEASLEY SC

DR TOBIN: We had that.

MR BEASLEY: All right.

COMMISSIONER: Have you seen the provisions of the statute? 5

DR TOBIN: Of the Act?

COMMISSIONER: Yes.

10

DR TOBIN: Yes.

COMMISSIONER: And do you think you understood them?

DR TOBIN: Yes, to my – to my beliefs. 15

COMMISSIONER: Did anyone at the Commonwealth, lawyer or otherwise,

explain any of them to you?

DR TOBIN: No. 20

COMMISSIONER: Did you have any direct dealings with the Chief Medical

Officer of the Commonwealth concerning your appointment?

DR TOBIN: Not directly, no. 25

COMMISSIONER: Did you understand your appointment was by him?

DR TOBIN: Yes.

30

COMMISSIONER: Someone on his staff informed you of the fact that he had

appointed you; is that right?

DR TOBIN: Yes.

35

COMMISSIONER: Who was that?

DR TOBIN: It was a member of the Human Biosecurity team in - - -

COMMISSIONER: The Commonwealth? 40

DR TOBIN: - - - the Commonwealth Department of Health.

COMMISSIONER: The Commonwealth Department of Health.

45

DR TOBIN: Yes.


MR BEASLEY SC

COMMISSIONER: And did they give you any induction of any kind?

DR TOBIN: No.

MR BEASLEY: Could that person have been Mandy Charlton? 5

DR TOBIN: Mandy’s in that team, yes. Sorry.

MR BEASLEY: I’m sorry. Not everyone has a voice that can be heard without a

microphone. So - - - 10

DR TOBIN: Sorry.

MR BEASLEY: - - - you were provided with a form of overhead projector slide

type explanation of the Biosecurity Act; do you remember that? 15

DR TOBIN: Yes, certainly .....

MR BEASLEY: And did you have regard to that?

20

DR TOBIN: Yes.

MR BEASLEY: Would this ring a bell? It’s a series of PowerPoints that appears to

explain the Biosecurity Act by the use of – amongst other things, pictures of Muppets

and screen extracts from the film, Contagion. Does that ring a bell that you received 25

that document?

DR TOBIN: Yes, yes.

MR BEASLEY: And you understood generally, did you, that your role as Chief 30

Human Biosecurity Officer in terms of the advice you gave to Commonwealth

people, for example, from the Department of Agriculture, Water and the

Environment, was, as the agreement says, day-to-day advice regarding the screening

of travellers that at our borders in relation to listed human diseases?

35

DR TOBIN: Yes.

MR BEASLEY: And providing medical advice to biosecurity officers, which in this

case I would read as the Commonwealth biosecurity officers, assessing all travellers

at Australia’s international ports of entry? 40

DR TOBIN: Yes.

MR BEASLEY: They were the core roles - - -

45

DR TOBIN: Yes.


MR BEASLEY SC

MR BEASLEY: - - - for which the State of New South Wales receives the princely

sum of about $80,000 a year; does that ring a bell?

DR TOBIN: Yes.

5

MR BEASLEY: Why when you sat on the – and, obviously, we will come to

precisely what your decision-making was and the reasons for it in relation to the risk

assessment panel, but why – in light of those responsibilities under the arrangements

between the Commonwealth and the State, why did you not think you were

performing any form of Commonwealth role when you sat on the risk assessment 10

panel?

DR TOBIN: As I understood, I was part of the panel because I was a senior medical

practitioner with experience in communicable disease control, particularly

respiratory infections. I was part of the senior medical team that was in the Public 15

Health Emergency Operations Centre, but I also brought experience as a Human

Biosecurity Officer, and I think that was of value as well. I didn’t make a distinction

between a Human Biosecurity Officer role or a Chief Human Biosecurity Officer

role.

20

MR BEASLEY: Just to help you with two things, first of all, in relation to the risk

assessments you were making and the screening procedures you were suggesting,

you were having regard to procedures that had been drafted by, amongst other

people, yourself, people from the New South Wales health system, not the

Commonwealth system, correct? 25

DR TOBIN: Yes.

MR BEASLEY: Would it be fair to say that you really didn’t – haven’t considered

whether you were sitting on this health assessment panel with either one hat or two 30

hats until you’ve come to do your statement for this inquiry?

DR TOBIN: Yes.

MR BEASLEY: Yes. So it wasn’t – is what you’re telling the Commissioner, it 35

really wasn’t part of your thinking at the time, “Am I exercising a Commonwealth

type responsibility while I sit on this risk assessment panel?” That wasn’t part of

your thinking?

DR TOBIN: No, no. 40

MR BEASLEY: No. All right.

COMMISSIONER: Doctor, does the word “pratique” mean anything to you?

45

DR TOBIN: Yes.


MR BEASLEY SC

COMMISSIONER: Did it at the time you accepted appointment as the Chief

Human Biosecurity Officer under the Commonwealth Act?

DR TOBIN: Yes.

5

COMMISSIONER: And would it be fair to summarise your understanding as being

that that is a permission that may be conditional for the disembarkation or unloading

of a ship?

DR TOBIN: Yes. 10

COMMISSIONER: Or an aircraft, but we’re talking about ships.

DR TOBIN: Yes.

15

COMMISSIONER: And has it been your understanding since your appointment as

the Chief Human Biosecurity Officer for New South Wales that you had a statutory

role through delegations in the grant of pratique where there was reason to turn an

official mind to infectious disease on board a ship?

20

DR TOBIN: Yes, I – I was already – prior to my appointment, I was appointed as a

Human Biosecurity Officer and had similar thoughts.

COMMISSIONER: And did you understand, however, that you had a personal

decision-making role in relation to conditions that might be imposed upon the 25

disembarking of a cruise ship?

DR TOBIN: As the Chief Human Biosecurity - - -

COMMISSIONER: Yes. 30

DR TOBIN: As I understood it, there is no difference between the powers of a

Human Biosecurity Officer and a Chief Human Biosecurity Officer in that setting.

COMMISSIONER: Right. And both might have – depending upon the dispositions 35

of personnel from time to time, both might have a decision-making role with respect

to the imposition of and the policing of conditions for the disembarking of cruise

ships?

DR TOBIN: Yes. 40

COMMISSIONER: In particular, where there was considered good reason for your

official minds to be turned to the possibility of an infectious disease that may

endanger the Australian community?

45

DR TOBIN: Yes.


MR BEASLEY SC

COMMISSIONER: Wasn’t that what the cruise ship risk assessment panel was

effectively doing, though under a different bureaucratic arrangement?

DR TOBIN: I think they were supporting that process.

5

COMMISSIONER: Aren’t they exactly the same, that is, turning minds to what

should be done in order to prevent a danger to the Australian community from the

possibility of infectious disease on board a cruise ship?

DR TOBIN: Yes. 10

COMMISSIONER: Is there any difference between the two functions, apart from

official framing?

DR TOBIN: Sorry? 15

COMMISSIONER: Let me be more direct. You wouldn’t be more or less stringent,

would you, whether you would wear a Commonwealth or State hat?

DR TOBIN: No. 20

MR BEASLEY: Can I help you this way. If under the health assessment

procedures and risk assessment procedures that have been drafted for New South

Wales you assessed a ship as high risk, then under that scenario, passengers and crew

were prevented from disembarking until certain things had happened, that is a form 25

of denying pratique, correct?

DR TOBIN: Yes, yes.

MR BEASLEY: So that can only be a Commonwealth function, can’t it? It can’t be 30

a State function? It might be a decision-making process arrived at by various people

within the State Health system, but pratique is a Commonwealth power so it could

only have been a decision made wearing a Commonwealth hat, correct?

DR TOBIN: Yes. 35


COMMISSIONER: Well, the expert panel was going to be informing that decision,

was it not? 40

DR TOBIN: Yes.

COMMISSIONER: Whether you knew it or not, you were being advised by

yourself and your colleagues in your – wearing your State hats as to what you might 45

do wearing your Commonwealth hat; is that one way of looking at it?


MR BEASLEY SC

DR TOBIN: Yes.


MR BEASLEY: Can I just ask. What – and please don’t think this is a criticism of 5

you because it is not, but what processes – I’m struggling to find the lines of

communication between the Commonwealth and the State, for example – and we

will come to it. The Commonwealth, that is the Department of Agriculture, Water

and the Environment, receives a Human Health Report from a ship in relation to its

decision about whether or not to grant pratique. I can’t see that form finding its way 10

to the people on the health assessments panels that you were on. Were you aware of

those Human Health Reports, the Commonwealth ones?

DR TOBIN: I was aware that they were being provided to South East Sydney

Public Health Unit in their - - - 15

MR BEASLEY: Yes.

DR TOBIN: In preparing the information that we used for assessments.

20

MR BEASLEY: Yes. I think in relation to the – we will come to it, but you had a

role in at least – I know you didn’t draft it, but you made suggestions for what

became the national protocol for dealing with COVID-19 on cruise ships, correct?

You remember that?

25

DR TOBIN: Yes.

MR BEASLEY: One of the suggestions I think you made was for further

questioning – further questions to be asked of ships in relation to the – in relation to

that Human Health Report – remember that – particularly in relation to, I think, 30

influenza-like illnesses?

DR TOBIN: Yes.

COMMISSIONER: This is the Maritime Arrivals Reporting Scheme? 35

MR BEASLEY: MARS, yes. It is, yes.

COMMISSIONER: That you know as MARS; is that right?

40

DR TOBIN: Yes, yes.

MR BEASLEY: But what I can’t see is – did you think it was important for that

health assessment team, the New South Wales health assessment team, to be

provided with that report in addition to the acute respiratory disease log, for example, 45

that you were provided with or was that something you just didn’t consider at the

time?


MR BEASLEY SC

DR TOBIN: I think we had made suggestions that MARS could be modified to

include more information to make that process of assessment an easier one, and I

think subsequently, when we discovered that it couldn’t be made, we went to the

cruise ships themselves and sought that extra information, but I think it would’ve

been simpler if it was all done through MARS. 5

MR BEASLEY: All right. Commissioner, I’m going to come back to it, but I want

to leave the Commonwealth for a while and go to the New South Wales procedures.

COMMISSIONER: Yes. Could I just ask one question - - - 10

MR BEASLEY: Yes.

COMMISSIONER: - - - before you do so. In summary, did you understand that

that was a technical question concerning the configuration of the MARS system that 15

led to your suggestion not being acceded to?

DR TOBIN: Yes. I think the response we heard back from Commonwealth Health

Department was that it was difficult to – they’ve just got it as being hardwired and

difficult to change that process and – but I think they raised the possibility of 20

continuing discussions about making changes in the future.

MR BEASLEY: When you say “hardwired”, do you mean that there was software

problems in rewriting the questions?

25

DR TOBIN: I don’t - - -

MR BEASLEY: What does “hardwired” mean?

COMMISSIONER: Well, it doesn’t mean software. 30

MR BEASLEY: Yes.

COMMISSIONER: Not if it’s being used intelligently. It’s the opposite of

software, isn’t it? 35

DR TOBIN: I don’t know the details unfortunately.

COMMISSIONER: I’m wondering – it strikes me, at least in retrospect, that that’s a

pretty inadequate response to a request by someone like yourself to obtain more 40

information for public health screening purposes, to be told it will be too difficult to

alter the questions that are asked for that very purpose. It seems odd to me. Why

have a system if you can’t adapt it by way of improvement? Did it seem odd to you

at the time?

45

DR TOBIN: It did. But I don’t have an understanding of the mechanics of the

process, I suppose.


MR BEASLEY SC

MR BEASLEY: I think - - -

COMMISSIONER: And I can assure you you’ve got more than I have. But were

you ever told in words you could understand why a scheme that had been devised by

mankind could not be improved by mankind? 5

MS FURNESS: Commissioner, might I just assist. Behind tab 15 of the bundle - - -

MR BEASLEY: No. We’re just going to come to that.

10

COMMISSIONER: Yes.

MS FURNESS: - - - is the email from the Commonwealth to Dr Tobin setting out

the reason why - - -

15

COMMISSIONER: That I know.

MR BEASLEY: “Hard-coded” might be the word that - - -

DR TOBIN: Hard-coded. 20

COMMISSIONER: I know, that’s why I framed my question as I did.

MR BEASLEY: Yes.

25

DR TOBIN: Sorry. I misspoke.

COMMISSIONER: Did you understand what they were talking about?

DR TOBIN: No. 30

MR BEASLEY: Just – just for the record, what – the response you got, Dr Tobin,

was:

We can raise the possibility of changes to MARS with the relevant team in 35

Agriculture, but I understand the questions in the software are hard-coded,

which does mean changes are quite difficult.

What did you understand you were being told by that? Other than it’s difficult to

change, did you have any other understanding beyond that? 40

DR TOBIN: Not really, no. I’m sorry.

MR BEASLEY: All right. All right. Can I turn to your - - -

45

COMMISSIONER: I’m sorry. But I might as well finish that off.


MR BEASLEY SC

MR BEASLEY: Yes. Go ahead.

COMMISSIONER: In the email which is behind tab 15 in exhibit twenty - - -

MS FURNESS: Nine. 5

COMMISSIONER: - - - nine?

MR BEASLEY: Yes.

10

COMMISSIONER: What was the expertise that you understood the sender of that

email to you, namely, Mandy Charlton, had? Was she medical, computing,

administrative; what?

DR TOBIN: I – I don’t know Mandy’s formal background. And I understood she 15

was acting as – well, she was in a – in a kind of deputy role with the Border Health

team.

COMMISSIONER: Yes.

20

DR TOBIN: But I think her concerns are predominantly border health issues rather

than community. And I understood that the – she was with Health, but the – the

people who owned the programs and the system were the Department of Agriculture,

Water and Environment or others in the Commonwealth and not Health.

25

COMMISSIONER: Yes.

MR BEASLEY: Just to interrupt, Commissioner, I should possibly have flagged it

right at the beginning, but what I’ll call the Commonwealth has said to your inquiry

that it will be supplying a detailed submission and supporting documents. I make no 30

criticism of that.

COMMISSIONER: No, that’s fine.

MR BEASLEY: There has been a couple of deadlines gone past, but I understand 35

you will receive that material this week. I don’t think it affects any of the evidence

that’s going to be given this week, but that material will no doubt be very helpful and

may explain some of this.

COMMISSIONER: I just want to jump to one of the end points. You were told, in 40

response to an email request by you for additions which would make it much easier

to risk-assess the cruise ships in advance – I interpolate that sounds like a good idea

– you were told that:

Before requesting any additions, the Commonwealth would want to ensure that 45

all chief human biosecurity officers were happy with the request to enable

national consistency.


MR BEASLEY SC

Do you see that?

DR TOBIN: Yes.

COMMISSIONER: What was the significance of “national consistency” such that it 5

would delay improvement of things at the busiest port in Australia?

DR TOBIN: I’m not sure.

COMMISSIONER: It can’t be for its own sake, can it? 10

DR TOBIN: No.

COMMISSIONER: You wouldn’t want a poor system consistently over and above

a patchily good system, would you? 15

DR TOBIN: No.

COMMISSIONER: And I’m sure nobody has ever suggested to you, “We’d rather

everyone was the same and bad – that some of us be good and some of us be bad.” 20

DR TOBIN: No.

COMMISSIONER: No. Are you aware of any further dealings concerning the

achievement of national consistency by way of additions to the MARS questions in 25

the interests of COVID-19 screening?

DR TOBIN: Since that time?


DR TOBIN: No, no.

COMMISSIONER: And one has to take into account, of course, that ships have

stopped arriving and disembarking. But have you been given any other explanation 35

than that for not hearing anything since February about that?

DR TOBIN: No.


MR BEASLEY: I just want you to see if you agree with these general propositions,

Dr Tobin: throughout February and then up until the 9th of March, New South Wales

medical health professionals were engaged in the process of drafting a series of

screening procedures for ships entering New South Wales ports; correct? 45

DR TOBIN: Yes.


MR BEASLEY SC

MR BEASLEY: And you, in February, seemed to be just being sent drafts of those

screening and risk-assess procedures to, if you like, keep you in the loop. You didn’t

play a significant role in relation to suggesting substantive additions or changes to

those documents until the early part of March. Is that your memory?

5

DR TOBIN: Yes.

MR BEASLEY: In other words, you – I think you had a bigger role to play in what

became the 9 March Enhanced Covid Risk Assessment Procedures; that document.

You recall that document? 10

DR TOBIN: The advice to the cruise ship?

MR BEASLEY: It is an advice to the cruise ship.

15

DR TOBIN: Yes, yes.

MR BEASLEY: The 9 March Enhanced Procedures document I will call it.

DR TOBIN: Yes. 20

MR BEASLEY: Through the same time – same period – the Commonwealth was

developing its own national protocol regarding risk assessment of cruise ships for

COVIE-19, which - - -

25

DR TOBIN: Yes.

MR BEASLEY: Correct?

DR TOBIN: Yes. 30

MR BEASLEY: Which resulted in a National Protocol. I think version 1 was the

6th of March.

DR TOBIN: Yes. 35

MR BEASLEY: All right. I want to focus on the New South Wales procedures

first. Could I ask you to turn to tab 4 in Annexure 29. Sorry. Exhibit 29. And you

see there that’s an email from Dr McAnulty, who’s the executive director of Health

Protection New South Wales. Dr McAnulty’s known to you? 40

DR TOBIN: Yes, yes.

MR BEASLEY: And Health Protection New South Wales is a branch of the

Ministry too, I think; is that right? 45


MR BEASLEY SC

DR TOBIN: The Communicable Disease Branch sits within Health Protection New

South Wales. Yes.

MR BEASLEY: Yes. All right. And as well as to you, this email is, first of all,

directed to Professor Ferson, who is the director of the South East Sydney Local 5

Health District Public Health Unit; correct?

DR TOBIN: Yes.

MR BEASLEY: All right. And you knew him as being someone in charge, 10

generally, of the Cruise Ship Surveillance Program.

DR TOBIN: Yes.

MR BEASLEY: All right. Okay. This email, I’m not sure that you had a 15

significant response to it, but I just want to ask you some questions about it. What

was being proposed here, if you look at the first bullet point, is that:

A public health unit, EHO –

20

is that emergency health operations?

DR TOBIN: Environmental Health Officer. Yes.

MR BEASLEY: Sorry. Environmental Health Operations: 25

…would meet all cruise ships - - -

DR TOBIN: Yes.

30

MR BEASLEY:

- - - that have been to a country other than Australia.

So the first plan, at least as at 12 February, we’re going to meet all cruise ships. 35

Then:

Well before docking, the cruise ship is going to provide the Public Health Unit

with –

40

this information – first of all:

Passengers going to a country with local transmission of the disease.

Which, at the time of 12 February, the key country was still China; correct? 45

DR TOBIN: Yes.


MR BEASLEY SC

MR BEASLEY:

Number of patients with respiratory illness.

Two bullet points down: 5

Ship to ask all passengers with respiratory symptoms to self-isolate.

Can I just ask you, when you read this document and saw the words “respiratory

illness”, what did you – obviously, we have to ask Dr McAnulty what he meant – but 10

when you read them, what did you take to be the meaning of “respiratory illness”?

DR TOBIN: So I understood it to be an acute respiratory illness – an acute

respiratory infection.

15

MR BEASLEY: Yes.

DR TOBIN: And - - -

COMMISSIONER: “Acute” meaning sudden onset? 20

DR TOBIN: Yes.

MR BEASLEY: Not chronic?

25

DR TOBIN: Yes.

MR BEASLEY: And were you, through this period of February and March,

keeping up-to-date with, for example, the suspect case definition for COVID-19 that

was being published, sometimes in consecutive days, by the Communicable Diseases 30

Network of Australia?

DR TOBIN: Yes.

MR BEASLEY: You obviously know what the CDNA is. I don’t need to ask you 35

any questions about that.

DR TOBIN: No.

MR BEASLEY: And it was putting out fairly continuously since February and 40

March and may still be – in fact, I know it still is – putting out definitions about what

a suspect case is for COVID-19, both in relation to epidemiological criteria on the

one hand and clinical criteria on the other; correct?

DR TOBIN: Yes. 45


MR BEASLEY SC

MR BEASLEY: And you may have also been reading the epidemiological reports

that were being published on a weekly basis concerning COVID-19 by the CDI?

DR TOBIN: I must say I was aware of them. I wasn’t spending a lot of time on

them, but – yes. 5

MR BEASLEY: I understand you were busy with other things. But you’re

generally aware of those publications - - -

DR TOBIN: Yes. 10

MR BEASLEY: - - - which were informing the medical community on the latest

understandings of symptoms associated with COVID, transmissibility of COVID,

morbidity, mortality, everything you’d want to know about COVID-19?

15

DR TOBIN: Yes.

MR BEASLEY: And I think, consistently, throughout February and March and, no

doubt, still now, if we consider only the clinical criteria for COVID-19, you were

aware that it was either fever or an acute respiratory illness with or without fever; 20

correct?

DR TOBIN: Yes.

MR BEASLEY: Yes. Forget epidemiological criteria, which constantly changed as 25

new countries became riskier countries, if I can say that, for community

transmission. But in terms of clinical criteria, it could be fever or acute respiratory

illness, that is, someone with a cough, someone with a sore throat, someone with

shortness of breath, with or without fever; correct?

30

DR TOBIN: Yes. I – I’d probably need to consult to the particular conditions of the

- - -

MR BEASLEY: I’ll certainly - - -

35

DR TOBIN: All right.

MR BEASLEY: When we get to it, I’ll show you the one that was the CDNA - - -

DR TOBIN: Sure. 40

MR BEASLEY: - - - suspect case definition that was current as at the 10th of

March, but - - -

DR TOBIN: Yes. 45

MR BEASLEY: - - - just assume, does it sound right?


MR BEASLEY SC

DR TOBIN: Yes, yes, yes.

MR BEASLEY: Please assume I’ve checked - - -

DR TOBIN: Yes. Yes, it does. 5

MR BEASLEY: - - - the clinical criteria was fever or acute respiratory illness with

or without fever.

DR TOBIN: Yes. 10

MR BEASLEY: Was that your general understanding too, in relation to COVID-19,

that this particular SARS disease was one where a majority of people did have a

fever, but that the medical literature, as it was being published, was indicating –

depending on what journal article you read – that there were people that had tested 15

positive and somewhere between 10 to 30 per cent presented with the symptoms that

did not include a fever?

DR TOBIN: Yes.

20

MR BEASLEY: And by the term - - -

COMMISSIONER: And this is mid-February, is it?

MR BEASLEY: This is certainly by – it’s not – I think, in fairness, the medical 25

literature is – about a week following this there’s better information concerning the

percentages I gave. But as at the end of January, the clinical criteria for COVID-19

is with or without fever.

COMMISSIONER: For suspect cases? 30

MR BEASLEY: For a suspect case. So I think it was always recognised – is this

your understanding, Doctor – always recognised that this particular disease, in terms

of symptoms or signs in a patient that ultimately tests positive, there was a

percentage that just didn’t have a fever; correct? 35

DR TOBIN: Yes. It was a - - -

COMMISSIONER: Now, when you say “a percentage”, we’re not talking about

outliers – the exceptions that prove the rule – we’re talking about a sizeable minority 40

of clinical and public health significance; is that right?

DR TOBIN: Yes.

MR BEASLEY: And - - - 45


MR BEASLEY SC

COMMISSIONER: Could I just, at that point, ask you this: was it – when was it

that you, professionally, became aware of asymptomatic or presymptomatic

transmission as an inference from the observations?

DR TOBIN: Sorry. The first time that asymptomatic cases were reported? 5

COMMISSIONER: The first time you, professionally became aware of

asymptomatic or pre-symptomatic transmission apparently existing because of

inferences you and your colleagues around the world were drawing from

observations of the advance of the disease? 10

DR TOBIN: I can’t recall the date, but it was a particular episode in Germany that I

recall most clearly, where there was a visitor from China visited a workplace and

only developed symptoms after returning, but lead to some local cases there. And,

but I’m sorry, I don’t recall the particular date of that report. 15

COMMISSIONER: Is that one of the reports that the – was captured, you think, by

the Communicable Diseases Intelligence bulletins? You don’t know?

DR TOBIN: I – I don’t know. 20

COMMISSIONER: Yes. If you could make inquiries so that you can tell me as

categorically as possible, definitively as possible, when you think that occurred, so

that I can understand when you, personally - - -

25

DR TOBIN: Sure.

COMMISSIONER: - - - had that professional knowledge.

DR TOBIN: Yes. 30

COMMISSIONER: I would be most grateful, please - - -

MR BEASLEY: As we go through the various iterations of these protocols and the

health assessments, those, coming to do those dates may assist the witness with his 35

memory, if we go through it in a chronological fashion. Can I just ask you this,

though, returning back to Dr McAnulty’s proposed rough draft plan for screening

cruise ships for COVID, that we’re looking at. Based on what we’ve been

discussing, you took “respiratory illness” to be referring to something broader than

an influenza-like illness that would require a fever of some kind, whether it’s 37.8 or 40

38? You took respiratory illness to be something broader than that, being an acute

respiratory illness with or without a fever? Or did you read that as being directed to

an influenza-like illness? You’re allowed to say you, “Don’t recall” and you “didn’t

turn you mind to it” if that’s the case.

45

DR TOBIN: Yes. I don’t recall.


MR BEASLEY SC

MR BEASLEY: All right. So sitting here now, you don’t have a view or a memory

as to what you took to be the meaning of “respiratory illness”, at least, at 12 February

2020?

DR TOBIN: Not at that stage. 5

MR BEASLEY: All right. Okay.

MR BEASLEY: Just as a matter of language, within your discipline, respiratory

symptoms don’t require a fever, do they? 10

DR TOBIN: No.

MR BEASLEY: So that’s pretty clear, isn’t it, that you must have understood

respiratory symptoms as being the indicator for people to self-isolate, etcetera, that 15

would not require a fever?

DR TOBIN: I – I think, it would come down to the assessment of the doctor

reviewing that whether the – they thought that was an acute respiratory infection and

of concern. It wouldn’t require fever. I suppose, that distinction was more to 20

separate other forms of respiratory illness like asthma or things that wouldn’t be an

infection. But it would, certainly, would not have to include fever. So we would be

more interested in the influenza-like illness category. But certainly, we would be

interested in any acute respiratory infection.

25

MR BEASLEY: Acute respiratory infection is, unremarkably, able to be observed

without a fever. Is that right?

DR TOBIN: Yes.

30

MR BEASLEY: So as a matter of ordinary - - -

MR BEASLEY: When we’re using – when we’re using the term “fever” do you

have any rule of thumb in relation to fever? Is it 100 degrees Fahrenheit being 37.8

or do you consider it 38C or something else? 35

DR TOBIN: It’s a good topic to start debate amongst clinicians.

MR BEASLEY: Yes. The – just the short answer will do.

40

DR TOBIN: I think, the current one is 37.5 which, I think, people are comfortable

with. But certainly, there are debate about whether that it too low. But certainly,

that’s a good starting point, I think.

MR BEASLEY: Just so we’re clear in terms of what Dr McAnulty is asking of you, 45

you are – all the people in this email, yourself, Professor Ferson, Dr Selvey, Dr

McAnulty himself, are public health experts, correct? Involved in public health?


MR BEASLEY SC

DR TOBIN: Yes. Yes. Yes.


DR TOBIN: Yes. 5

MR BEASLEY: If you don’t want me to use the term “expert” I won’t. But you’re

all involved in public - - -


MR BEASLEY: - - - public health physicians?

DR TOBIN: Very experienced public health physicians.

15

MR BEASLEY: And what that involves s the surveillance of diseases like COVID-

19, transmissible communicable diseases. And the process here is trying to work out

strategy, policy, procedure that, in terms of its core functions:

(1) Prevents the spread of this disease in our jurisdiction, we will say first, New 20

South Wales.

DR TOBIN: Yes.

MR BEASLEY: And has a controlling factor on it as well. They’re the core 25

functions of public health here?

DR TOBIN: Controlling factor for the transmission?

MR BEASLEY: Controlling the spread of the disease, as well? 30

DR TOBIN: Yes. Yes.

MR BEASLEY: And so, that’s what this rough draft is seeking to do, to put in place

a procedure that prevents and controls the spread of this disease in New South Wales, 35

correct?

DR TOBIN: Yes.

MR BEASLEY: All right. Okay. Now, I am not sure – the rough draft that 40

Dr McAnulty prepared and circulated for comment went to a lot of different health

professionals. And so, we have been supplied with all of their emails, not all of

which you may have been copied into. So I need to explore that first. But for

example, if you turn over to tab 5, if you go to the very last page, first of all, so the

last page before tab 6. You will see, there’s an – sorry, I should have taken you to 45

the second last page. You will see an email from Dr Sheppeard that she sent on 13

February 2020 at 1.18 pm to a range of people enclosing, if you go over the page, the


MR BEASLEY SC

draft procedure document that Dr McAnulty had drafted. Going forward in the

document, but – and also, forward in time, can you – if you go over from page 1, you

will see an email from Dr Leena Gupta that she sent on 13 February 2020 at 2.53 pm.

Do you see that?

5

DR TOBIN: Yes.

MR BEASLEY: Now, that’s gone to a lot of people. But I can’t see that it went to

you. What I would direct your attention to, though, is paragraph 2 of Dr Gupta’s

email where she said this in response to Dr McAnulty’s draft: 10

To strongly recommend on public health grounds that all results available for

cruise ships where this is the final port of disembarkation for the cruise ships

before disembarkation commencement.

15

I think, what she is saying there with, perhaps, a word missing is she wants COVID-

19 test results available before there has been any disembarkation of the ship.

Because she goes on to say:

Our experience from the follow-up of a much lesser number of negative results 20

daily from the Coronavirus Clinic has identified people don’t have an Aussie

SIM

So no contact number, that’s obviously a concern about tracing people after they’ve

gotten off a ship: 25

numbers can be wrong or ring through

That is, telephone numbers can be wrong:

30

hotels get very concerned if people are discharged pending test results. There

will also be community expectation in light of the Japan incident.

And that seems, clear enough, to be a reference to the Diamond Princess?

35

DR TOBIN: Yes.

MR BEASLEY: Do you recall seeing this email?

DR TOBIN: No. 40

MR BEASLEY: All right. Can I ask you then, does that mean you also didn’t

receive – could the witness be shown Dr Durrheim – do you know Dr Durrheim?

DR TOBIN: Durrheim, yes. 45

MR BEASLEY: I was just going to ask you how I pronounce his name.


MR BEASLEY SC

DR TOBIN: Yes.

MR BEASLEY: Is it Durrheim, I’m sorry?

DR TOBIN: Durrheim, I think. 5

MR BEASLEY: Durrheim. You see an email you’ve just been handed where

Durrheim also responds to Dr McAnulty’s draft. This is an email from Dr Durrheim

to others dated 13 February 2020. Again, it’s gone out to virtually every relevant

person. But again, you seem to be left off this email. You will see there, that he 10

expresses the view that he agrees with Dr Gutpa:

there is a very high-risk transmission opportunity. People my fly in from Asia

to board in Sydney, Newcastle, and travel home on the ship. The burden that

cruise ships have placed on public health surveillance in the previous 15

pandemic was enormous. We will need some real clarity around casual and

close contacts in this context. Given the Japanese experience, it appears that

this virus spreads efficiently in this petri dish environment. Once the horse

(should that be the pangolin) has bolted off the vessel, we have lost control for

many of the reasons that Leena has expressed. 20

And he – Dr Durrheim then goes on to express the view that specimens should be

taken off the ship and tested rapidly. Did you see that email, at this time?

DR TOBIN: I don’t think so. 25

MR BEASLEY: All right. Okay. Can I ask you this, then? There are some other

emails where Dr Gupta expresses the view, again, where she repeats her view that

she thinks, “No one should disembark until such time as any swabs have been taken

have been tested and we know the test results.” Can I ask you, were you involved in 30

any discussions where Dr Gupta’s view was discussed with others in these email

chains? Like Professor Ferson, like Dr McAnulty. Do you recall having a

discussion about whether Dr Gupta’s view should be accepted?

DR TOBIN: I don’t recall. 35

MR BEASLEY: All right. So - - -

COMMISSIONER: Doctor, how should I understand the assembly of the list of

addresses for these emails? Because I’m puzzled as to why you’re not on it, given 40

that you were already the Chief Human Biosecurity Officer appointed under

Commonwealth powers for New South Wales responsible for infectious disease

aspects of the grant of pratique. Why weren’t you on it?

DR TOBIN: Looking through this list, I think, it’s primarily the directors of the 45

public health units.


MR BEASLEY SC

COMMISSIONER: I’m to understand there’s some hierarchical reason you’re not

on it?

DR TOBIN: Possibly, yes. I think, Dr McAnulty was looking for the opinions of

the directors of the public health units, primarily. 5

MR BEASLEY: It - - -

COMMISSIONER: Well, Dr McAnulty can answer to that. Thank you.

10

MR BEASLEY: It’s, I guess, another explanation is that it’s just an oversight?

DR TOBIN: Possibly, yes.

MR BEASLEY: Because if you turn to – if you can turn to tab 6, you’ve come back 15

into the email loop, in these emails. If you can go to the last one, first of all, you will

see that that’s just a repeat of Dr McAnulty’s email with his first rough draft.

DR TOBIN: Yes.

20

MR BEASLEY: Which obviously was sent to you. Then you will see Professor

Ferson, and you are copied into this email, has responded with his thoughts on Dr

McAnulty’s draft. Now, obviously, some of these are matters to take up with

Professor Ferson and not you. But at the top of – Professor Ferson’s email is sent at

12 February at 5.27 pm. Can you go to the paragraph where it says: 25

The downside

Do you see that?

30

DR TOBIN: Yes.

MR BEASLEY:

The downside of having a team meet each boat (apart from the cost and wear 35

on staff)

Just pausing there, obviously, I will ask Dr Ferson this, but what did you understand

– what did – you – understand him to be referring to where he refers to “the cost”.

What’s “the cost”? 40

COMMISSIONER: We’re talking about salaried staff aren’t we, Doctor?

DR TOBIN: Yes. I – I think, he’s talking about the human resource cost.

45

COMMISSIONER: What – what do you mean by that?


MR BEASLEY SC

DR TOBIN: Of assembling a health team to meet each boat from - - -

COMMISSIONER: But are you talking about a money outlay?

DR TOBIN: I think – I can’t really speak for - - - 5

COMMISSIONER: No. No. That’s - - -

MR BEASLEY: No. No.

10

COMMISSIONER: - - - you’re quite right. Thank you, yes.

MR BEASLEY: Did you – did you – I’m not asking you what Professor Ferson

thought he meant, I’m asking whether you noticed this in this email and gave any

thought to, “What’s he talking about there?” 15

Wear on staff

May be a different issue, I assume, but when it says “cost” did you have any thoughts

about that? 20

DR TOBIN: I can’t recall - - -

COMMISSIONER: That’s all right. If you don’t, that’s fine.

25


DR TOBIN: - - - discussions about costs and things like that.

MR BEASLEY: That’s okay. That’s fine. 30

COMMISSIONER: That’s fine.

MR BEASLEY: Then he says:

35

(apart from the cost and wear on staff) is that if a passenger is diagnosed

incidentally after disembarking, we will be asked, “Why we missed a case?”

And it will look worse for everyone.

What did you take Professor Ferson to be meaning from that? 40

MS FURNESS: Commissioner, Professor Ferson will be giving evidence. He can

give evidence as to what he meant.

MR BEASLEY: No. No. I’m – I will be asking Professor Ferson what he meant. 45

I’m asking this witness what he understood from an email that was sent to him.


MR BEASLEY SC

COMMISSIONER: Doctor, while you’re thinking about it, this is an email between

professional colleagues of medical expertise and public health specialty, is that

correct?

DR TOBIN: Yes. 5

COMMISSIONER: And it’s an email that you understood, called for response if

you thought response was appropriate. Is that right?

DR TOBIN: Yes. 10

COMMISSIONER: That’s why it was being copied to you. Not to consume

minutes of your working day, but to consult your professional expertise. Is that

right?

15

DR TOBIN: Yes.

COMMISSIONER: And you understood that comment might be called for, even if

it were not approval or applause? It might also include criticism and correction. Is

that right? 20

DR TOBIN: Yes.

COMMISSIONER: And you would not have been disturbed by hierarchy in that

regard, would you? 25

DR TOBIN: No.

MS FURNESS: Commissioner, I hesitate to interrupt. However, it is the case that

this witness was cc’d into the email, it was written - - - 30

COMMISSIONER: All right. Well, thank you. The notion of cc, carbon copy, that

you understood that made you a recipient invited to comment if appropriate, is that

right?

35

DR TOBIN: Yes.

COMMISSIONER: It wasn’t just there to encumber your file, was it?

DR TOBIN: No. 40

COMMISSIONER: Well, could you direct your attention, please, to Mr Beasley’s

question.

MR BEASLEY: What - - - 45

DR TOBIN: Yes.


MR BEASLEY SC

COMMISSIONER: Did you notice that? And what did you think?

MR BEASLEY: Before you respond, could I just put this to you.

DR TOBIN: Yes. All right. 5

MR BEASLEY: Public health, speaking generally, is about taking precautions,

giving advice in precautions to keep the community safe from a disease, correct?

DR TOBIN: Yes. 10

MR BEASLEY: It can’t possibly be part of a proper approach to public health that

you don’t take a precaution because it might look bad if something goes wrong?

DR TOBIN: No. 15

MR BEASLEY: So I assume, you didn’t think Professor Ferson was saying,

“Having a team meet each boat may be a proper precaution, but if we miss someone,

it’s going to be a PR disaster for us, so we won’t take that precaution.” That couldn’t

have been your - - - 20

DR TOBIN: I don’t think so, no.

MR BEASLEY: All right. If that couldn’t have been what he meant, what did you

think he meant? 25

DR TOBIN: As I say, I’m not sure - - -


30

DR TOBIN: - - - re-reading again, I still don’t understand.


COMMISSIONER: When you say you, “still don’t understand” is that because it 35

puzzles you as an attitude, apparently conveyed?

DR TOBIN: I – I just don’t understand the intent of the sentence.

COMMISSIONER: Well, don’t assume I do, either. 40

DR TOBIN: Sorry.

COMMISSIONER: And we will ask the author who can explain it. But I am asking

you, as somebody to whom it was directed, who has told me that you appreciated that 45

if there was comment by you, considered by you appropriate, you would have made

it. That involves the notion that you would try to understand it. This is not a


MR BEASLEY SC

criticism. I’m asking, do you think you appreciated or thought about, I should say,

the implications of that sentence, when you read it, first?

DR TOBIN: Well, as I say, I don’t recall appreciating that. And in one sense, I

think, Dr McAnulty was looking for comment back from each of us. And, this 5

would be, I suppose, a comment on a comment. And - - -

COMMISSIONER: But isn’t that what collegial discussion is?

DR TOBIN: Yes. Yes. And – but possibly, because I didn’t understand the intent 10

of it, I didn’t make comment back on it. I’m not sure.

COMMISSIONER: Well, I’m only a lawyer, but that sentence seems to me to

convey a rather untoward attitude. Would you agree with that?

15

DR TOBIN: I – I don’t draw that conclusion, no.

COMMISSIONER: Well, could you use your own words. What do you draw from

that sentence?

20

DR TOBIN: So I – I don’t understand the intent and I, perhaps, should have replied

to – for – asking for clarification, but I - - -

MR BEASLEY: All right. Maybe it’d become clearer from some follow-up emails.

You’ll see, after Professor Ferson sends that email response to the group of you, Dr 25

McAnulty prepares another draft for discussion. If you go to the first page of this

annexure and down to the very bottom email, you see an email from Dr McAnulty,

13 February 2020, at 8.27 am. Do you see that?

DR TOBIN: Yes. 30

MR BEASLEY: Where he thanks Professor Ferson for his comments. And if you

go over the page, the procedure still suggested by Dr McAnulty is that a public

health unit team will still meet all cruise ships that have been to countries other than

Australia. They’ll still require cruise ships to provide that public health unit with 35

certain information regarding contacts with a proven case of the virus, the number of

passengers and crew who have been to China. Importantly:

Number of patients who have presented with respiratory illness or fever.

40

You see that?

DR TOBIN: Yes.

MR BEASLEY: So it seems as though Dr McAnulty is – whether he had this 45

expressly in mind or not, I’ll have to ask him – but he’s certainly using that broader


MR BEASLEY SC

clinical definition of a suspect case of COVID, that is, respiratory illness with or

without fever.

DR TOBIN: Yes.

5

MR BEASLEY: Did you notice that at the time?

DR TOBIN: Yes, I can’t – I can’t recall if I did.

MR BEASLEY: All right. Dropping down, you will see he’s also asking: 10

All passengers who have been in a country with local transmission in the

previous 14 days or who have current symptoms or fever –

then it’s got – 15

of respiratory illness.

And I’m pretty sure that’s a typo and means “or respiratory illness”. Again - - -

20

DR TOBIN: Yes.

MR BEASLEY: - - - reinforcing that clinical definition of COVID-19. You will

see, over to the first page, Professor Ferson responds to this draft at 11.12 am on the

13th of February, suggesting that: 25

The proposed protocol has got worse, not better.

Then he said this – and, again, obviously, we’ll ask him what he meant. But in terms

of what you understood he was advising the rest of your group: 30

The requirement for the health team to check everyone with current symptoms

without travel history is very much overkill. We can ensure the ship doctors

give out information and masks, which they do routinely, and get their contact

details. 35

And he goes on to mention:

There’s always a handful of people on a ship with an ILI.

40

So he’s not referring to an acute respiratory illness without a fever. But what did you

understand, or what did you take from him saying:

The requirement of a health team to check everyone … is overkill.

45

Did you agree with that?


MR BEASLEY SC

DR TOBIN: Well, I thought he was foreshadowing the need for a risk assessment

and that there may be some cruises with a very low risk assessment, particularly

those ones without that epidemiological link that we were looking for in suspect

cases.

5

MR BEASLEY: Does that mean you felt what he was trying – your understanding,

from what he was telling the rest of you, was, “There might be ships where the

information we get has such a low risk for COVID-19 being on this ship that sending

out a health team is not an appropriate response”?

10

DR TOBIN: Yes, I think so.

MR BEASLEY: Something like that?

DR TOBIN: Yes. 15

MR BEASLEY: All right. You will see Dr McAnulty has responded to Professor

Ferson, copying you in again, shortly after, at 11.54 on 13 February. I just want to

ask your views on whether you agree with this. Dr McAnulty has responded to

Professor Ferson saying: 20

It is a lot of work, but it’s trying to balance the very low risk with the very big

problem if we have a case on a ship.

What did you understand – what was your understanding of what Dr McAnulty was 25

advising there? And did you agree that it would be a very big problem if you had a

case on a ship?

DR TOBIN: I certainly agree that it would be a very big problem and I think - - -

30

MR BEASLEY: And do you agree it would be a very big problem, because if there

is a – if people test – have been on a ship and they test positive for COVID-19,

knowing what we know about the transmissibility of this disease, that is, droplets –

human-to-human transmission, droplets, fomites, contact, the very close cruise ship

environment, where humans are in close proximity to each other, the very big 35

problem is that it’s likely that there’s more than one person with COVID-19 on a

cruise ship if one person has tested positive; correct?

DR TOBIN: Yes.

40

MR BEASLEY: That’s the big problem. The big problem then is how do we

manage that: the possible spread of the disease given that this disease is on this ship?

DR TOBIN: Yes.

45

MR BEASLEY: So there might be a low risk that COVID is on a ship – on a

particular ship. I’m not – sorry. Just, generally, there might be a particular ship


MR BEASLEY SC

where you look at it and there’s a low risk, on the data we have, that COVID-19 is on

the ship. However, if that risk comes in, it’s a very big problem. You understand?

DR TOBIN: Yes.

5

MR BEASLEY: You agree with that analysis? Yes. All right.

COMMISSIONER: Doctor, could I ask you this: at this time, which, precisely, is

the 12th and 13th of February this year, in this exchange of emails to devise a system

to prevent, to the extent practicable, the spread of this new virus in Australia, where 10

would I find, in Dr McAnulty’s proposal, Professor Ferson’s responses, anything

which, in your opinion, took account of asymptomatic or presymptomatic

transmission?

DR TOBIN: I don’t think there is reference to that. And I think that was very much 15

an emerging issue at this time. And – and I – although I think it had been raised and

- - -

MR BEASLEY: There’s – yes.

20

DR TOBIN: - - - I don’t think it was a – thought to be a large factor in transmission

at this time.

MR BEASLEY: Did you - - -

25

COMMISSIONER: When you say – when you say “large factor”, do you mean

“too small to worry about”?

DR TOBIN: No.

30

COMMISSIONER: This whole area of your professional concern relates to the

existence of risks which are, in themselves, numerically small, but, in human terms,

of considerable importance; is that right?

DR TOBIN: Yes. 35

COMMISSIONER: To put it crudely, because materialisation of the risk will

include some deaths that could have been avoided?

DR TOBIN: Yes. 40

MR BEASLEY: 13 February, Commissioner – and we have to have some caution

about that date, because there was obviously a lot of medical literature published

about the Diamond Princess, but it is after this date, in terms of people testing

positive for – were you generally aware of some of the literature – scientific 45

literature – that was published after the Diamond Princess passengers were kept in –

on the ship for more than 14 days in relation to the numbers of people that were


MR BEASLEY SC

swabbed and were asymptomatic at the time they were swabbed, but, ultimately, the

swab was positive? Did you become aware of those publications of those results?

DR TOBIN: I had. I think so. But at a later date. Yes.

5

MR BEASLEY: It is at a later date. For example, some of the publications in

relation to the Diamond Princess of the – does this ring a bell – of the 600 or so

passengers and crew that tested positive for COVID-19, slightly more than half were

asymptomatic at the time the respiratory swab was taken from them. Do you recall

reading – being advised of that sort of results? 10

DR TOBIN: I don’t recall, in particularly, about the Diamond Princess. But,

certainly, I think there were reports this week - - -

MR BEASLEY: You were becoming aware, though, that, first of all, people could 15

test positive for COVID-19 while feeling well and having no symptoms? Did you

become aware of that?

DR TOBIN: Yes.

20

MR BEASLEY: Yes. And did you become aware of, through the course of the mid

to latter part of February, for example, of scenarios like this. Did you happen to read

a paper published on a large Chinese family and the different results that they had in

relation to COVID-19? That is, they all tested positive. Some were particularly sick

and they had abnormal X-rays of their lungs and they had a fever. Others felt well, 25

but they still had abnormal X-rays and they also had anomalies with their

lymphocytes in a blood test, whereas other people in this extended family also tested

positive for COVID-19 but had absolutely no symptoms or signs of the disease.

Were you becoming familiar with that trait and possibility with this particular

disease? 30

DR TOBIN: I’m sorry. I don’t recall that particular report. But, certainly, we were

aware that people might test positive, particularly, perhaps in very early stages of

their illness and become symptomatic afterwards and – but, certainly, there were

reports and – suggesting that there might by asymptomatic infections with no 35

symptoms at all.

MR BEASLEY: And I think what the Commissioner was directing you to was that

there was an emerging body of medical literature, which still has some uncertainties

about it even now, about the possibility of a person infected with this disease, who is 40

asymptomatic, being able to transmit it to another person.

DR TOBIN: I think that is an important second question to know whether, if

someone tests positive, particularly prior to developing symptoms, whether they are

actually infectious and how infectious they are. But, certainly, there have been 45

reports where they think that has happened. Yes.


MR BEASLEY SC

MR BEASLEY: All right. But you were aware, generally, as we move through

February and March, that there were reports of what I’ll call asymptomatic

transmission of the disease; correct?

DR TOBIN: Yes, yes. 5

MR BEASLEY: The other risk with this disease is – another risk of this disease is

also that it has generally thought to have an incubation period of between one and 14

days; correct?

10

DR TOBIN: Yes.

MR BEASLEY: But did you read the medical literature that suggests that the mean

is about five to six days to become symptomatic; correct?

15

DR TOBIN: Yes.

MR BEASLEY: Which, of course, poses the risk of someone being assessed as

well, having been infected on a cruise ship three days out from disembarkation, not

becoming symptomatic until they’ve been back on the land for a couple of days; 20

that’s a risk you’ve got to factor in as a public health physician?

DR TOBIN: Yes.

MR BEASLEY: Correct. All right. 25

COMMISSIONER: Now, Doctor, could I just get a couple of terms. “Incubation”,

is that from first understood or inferred contact to first detection of the virus or is it

from first contact to first symptom?

30

DR TOBIN: Generally, it’s from the time of exposure or the first contact to the time

of first symptom development.

COMMISSIONER: First symptom. So you can have a viral load during the

incubation period? 35

DR TOBIN: Yes.

COMMISSIONER: And I take it, in general terms, that is, by a priori thinking

before you’ve got observations, you would regard viral load as of relevance to 40

transmissibility?

DR TOBIN: I suppose it depends on where the viral load is.


DR TOBIN: If it’s an - - -


MR BEASLEY SC

COMMISSIONER: That’s why I didn’t say “determines”, but it’s relevant to?

DR TOBIN: Yes.

COMMISSIONER: And one of the vectors of inquiry with a new virus would be 5

trying to ascertain something about its natural history leading to viral load,

physiological sites and transmissibility; is that correct?

DR TOBIN: Yes.

10

COMMISSIONER: Because until you know that, for all you know, asymptomatic

people would have sufficient viral load to cause transmission?

DR TOBIN: Possibly.

15

COMMISSIONER: Well, a real possibility or just theoretical?

DR TOBIN: There’s certainly some illnesses and infections where we – it’s very

clear that people are infectious prior to their symptom onset.

20

COMMISSIONER: Now, when you say “infectious”, you mean in such a position

that they are a source of transmission to others?


25

COMMISSIONER: Now, that was an understood state of art well before February

2020. Is that correct?

DR TOBIN: Yes.

30

COMMISSIONER: But, if I may say so, almost completely, and understandably,

not understood in relation to this new virus. Is that right?

DR TOBIN: I think, we were evolving in our understanding of it.

35

COMMISSIONER: Yes.

DR TOBIN: And, certainly, many infections we don’t think are transmissible prior

to symptom onset. So we hadn’t drawn any conclusions.

40

COMMISSIONER: So that it was an open question, with the possibility being real,

of asymptomatic or pre-symptomatic transmission by mid-February. Is that correct?

DR TOBIN: Yes. I think so.

45

COMMISSIONER: Okay. I just want to return to the question I asked. Given that

state of art which is not knowing whether that possibility existed, but being aware


MR BEASLEY SC

that it might exist, I’m wondering, did you, as one of the cc’d recipients of these

proposals for a possible model for cruise ships, did you turn your mind to whether it

was adequately addressing the un-excluded possibility of asymptomatic

transmission?

5

DR TOBIN: Perhaps, not at this stage. But in subsequent development of our

procedures, there was a - - -

COMMISSIONER: Okay. But you can’t remember, at this time?

10

DR TOBIN: No.

COMMISSIONER: No. Would you see now and with all the benefit of hindsight,

that it, simply, does not address or take any sensible account of an un-excluded

possibility of asymptomatic transmission, that which Dr McAnulty and Professor 15

Ferson were debating between themselves?

DR TOBIN: Yes. I - - -

COMMISSIONER: Whoever’s version you choose, it takes – it seems to me, on my 20

lawyer’s reasoning, that it takes no account of the un-excluded possibility of

asymptomatic transmission. Am I misreading it?

DR TOBIN: I can’t see any reference to that either.

25

COMMISSIONER: Well, it’s not just “no reference to it” but when you look at the

precautions being proposed, and they are different from each of those two gentlemen,

that on neither version is anything done which might sensibly deal with

asymptomatic transmission as it seems to me, a lawyer. What does – how does it

seem to you, a doctor? 30

DR TOBIN: So I think, there is only reference to symptoms - - -


35

MR BEASLEY: The “very big problem” that Dr McAnulty is referring to, did you

also view that part of what would be a “very big problem” in relation to the possible

spread of this disease is that by 13 February, we, certainly, knew that it was – this is

a colloquial term, but it can be a very nasty disease, correct?

40

DR TOBIN: Yes.

MR BEASLEY: That it was generally understood, by this time, that whilst the

majority of people might get a, what’s called a “mild illness” which might depend on

your level of stoicism as to what you consider to be mild. But something like high 45

teens in terms of numbers of either getting a severe or a critical illness, correct?


MR BEASLEY SC

DR TOBIN: Yes.

MR BEASLEY: Severe meaning, you’re going to have to go to hospital and you’ve

having trouble breathing and you’ve got other complications. Critical meaning, you

might be in respiratory failure and you might be in organ dysfunction. And 5

something like five to six per cent of people that contracted this disease were getting

that critical level of illness, correct?

DR TOBIN: Yes.

10

MR BEASLEY: And so, the “big problem” did you consider that Dr McAnulty

was, likely, also, referring to the fact that if this disease spreads in the community

with something like, depending on what journal article you read, 17 to 20 per cent of

people getting either a severe or critical illness, it obviously, would, if it spreads as

relatively easily as it seems to, that’s something that’s going to put a big strain on our 15

health system?

DR TOBIN: Yes.

MR BEASLEY: A big strain on emergency departments, correct? 20

DR TOBIN: Yes.

MR BEASLEY: A big strain on general practices, probably?

25

DR TOBIN: Yes.

MR BEASLEY: And ICUs?

DR TOBIN: Particularly ICUs. 30

MR BEASLEY: All right. Yes. I have to ask you a couple more questions just to

see whether, again - - -

COMMISSIONER: Mr Beasley, sorry, are you moving off that document? 35

MR BEASLEY: I’m moving off that document – so, yes.

COMMISSIONER: Can I ask one further – now, I want to ask about samples. Did

you understand by about mid-February 2020 that one of the sources of information 40

for you as the Chief Human Biosecurity Officer in relation to the grant of pratique

for cruise ships would be the results from onboard tests for flu of swabs taken from

symptomatic patients, passengers, I should call them, and also, the laboratory testing

onshore of swabs from passengers, as well? Laboratory testing for COVID-19. Is

that something you understood as part of your armoury? 45


MR BEASLEY SC

DR TOBIN: Yes. And, I think, the flu testing experience onboard was an important

part of the risk assessment.

COMMISSIONER: Yes.

5

DR TOBIN: I think, the testing of – in our public health laboratories for COVID-

19 was, kind of, a second step, I suppose and would be particularly important for our,

as we come to it – the, if there is a high risk and if there is a strong suspicion of

COVID-19 onboard a ship, and then that becomes a very important element.

10

COMMISSIONER: What interests me is – what seems to me, and no doubt, I will

be better instructed by others, a rather inconsistent or patchy record of the thinking

about stipulating for swabs to be taken, appropriately stored and made available for

laboratory testing. Can I explain? Some references involve the notion of every

person from whom a swab is taken onboard for flu testing also has a swab taken to be 15

stored appropriately and delivered for COVID testing. Are you aware of those

notions?

DR TOBIN: Yes.

20

COMMISSIONER: And yet, I also see copiously in the record, cases where that

could not have been followed, because there are more flu swabs than COVID swabs.

That is, swabs taken for flu testing than swabs available for COVID testing. And if

they’re not the same number, it means that the rule, if I can call it that, of taking two

swabs for those different purposes, was not followed. Does that accord with your 25

recollection?

DR TOBIN: Yes.

COMMISSIONER: How could that come about? 30

DR TOBIN: Sorry, I’m not sure. And - - -

COMMISSIONER: Is it – is it – could it be a logistical problem, a shortage of

swabs? 35

DR TOBIN: I – I think, certainly on, we had feedback from cruise ships that they

were finding it difficult to find swabs. And even in our own public health

laboratories, there were sometimes concerns about the availability of swabs, because

there was an international demand for them. 40

MR BEASLEY: Do you do it the same way, swabbing for influenza and swabbing

for COVID-19? Or is it a different technique?

DR TOBIN: It’s a very similar technique. And - - - 45


MR BEASLEY SC

MR BEASLEY: My understanding for COVID-19 is you’ve, really, got to get the

swab right up – it looks very painful.

MS FURNESS: It is.

5

DR TOBIN: Yes. Yes.

MR BEASLEY: It has to be done correctly, otherwise you will end up with a –

potentially, a false negative, correct?

10

DR TOBIN: Yes. And we do encourage, what’s called a deep nasopharyngeal

swab, as well as a throat swab, as well. Whereas, for flu, maybe, just one of those

would be appropriate.

COMMISSIONER: Dr, the actual product though, the item, is it the same or not? 15

DR TOBIN: The swabs are different. And that is a problem in that, if the onboard

testing, as I understand it, uses a swab and it goes directly to the machine, so there’s

no need to - - -

20

COMMISSIONER: Yes.

DR TOBIN: - - - put it in a container and send it to a lab. So that was an issue early

on, I think, for cruise ships to find appropriate swabs that they could, also, send to a

laboratory. And because the ones they were using just for the flu swab were 25

sometimes not appropriate and sometimes they didn’t have the appropriate transport

tube or - - -

COMMISSIONER: If you had refused to grant pratique, so far as it was in your

power to do so, to a ship that had an inadequate number of swabs to deliver for 30

COVID-19 testing, practice would have improved rapidly, wouldn’t it?

DR TOBIN: Possibly.

COMMISSIONER: Did you ever give thought to that? A ship’s doctor who said, 35

“Look, I know I’m meant to have the swab for each of the people I’ve got flu swabs

for, but I don’t,” what are you going to do about it, if he has said, “Well, speak to the

Bridge about plotting a new course”?

DR TOBIN: I think we had been trying to work with industry to – because it was a 40

new procedure for them to adopt and - - -

COMMISSIONER: It was a novel virus, wasn’t it?

DR TOBIN: Yes. 45

COMMISSIONER: So the fact that it’s a new procedure is to be expected, isn’t it?


MR BEASLEY SC

DR TOBIN: I suppose we are also aware that there may have been difficulty in

some – in obtaining appropriate specimens so swabs - - -

COMMISSIONER: I have this in mind in particular, Dr McAnulty’s first proposal

that you’ve been asked questions about uses an expression such as, “Any sample 5

taken on board for flu testing be forwarded to the lab for coronavirus testing.” There

is an assumption, a pretty sensible one, I would’ve thought, that somebody

sufficiently symptomatic to be swabbed for flu should also be swabbed for

coronavirus, but that wouldn’t work as an assumption, that is, it would not be a safe

assumption, unless there is a practice designed to enforce it; isn’t that right? 10

DR TOBIN: Sorry. Could you clarify – yes.

COMMISSIONER: It’s all very well to say, “Any sample taken on board for flu

testing be forwarded for coronavirus testing,” but, physically, that means there has to 15

be two swabs taken, doesn’t it? They’re taken differently - - -

DR TOBIN: Yes.

COMMISSIONER: - - - and one is stored whereas one goes straight to the machine 20

on board; isn’t that correct?

DR TOBIN: It may have reflected our lack of understanding of the processes on

board, but, certainly, in some of the assessments where swabs were in the early days

sent to the laboratory, the laboratories reported back that they had received 25

inappropriate specimens. So we came to the view that it would not be appropriate

just to send the swab that they’d used for flu testing - - -

COMMISSIONER: No. Quite so. You need to take two.

30

DR TOBIN: Yes, yes.

COMMISSIONER: That doesn’t seem to have been addressed in these mid-

February proposals. It may be there’s an underlying assumption there would be two

taken and one kept for onshore later testing, but I don’t see it explicit here, do you? 35

DR TOBIN: I don’t see it here, no, and I think it may have been informed by later

advice from the laboratories.

COMMISSIONER: Could you take on notice, please. I would like you to tell me as 40

well, as definitive as you can, when you think you personally – you’re the Chief

Human Biosecurity Officer – when you personally regarded it as important to

stipulate that there would be two swabs taken from people reporting on board who

were swabbed for flu and the second would be stored appropriately and delivered for

COVID testing upon arrival in port? I would like to know when that was your 45

professional position. At the moment - - -


MR BEASLEY SC

DR TOBIN: Sure.

COMMISSIONER: - - - I infer – please comment on this now or come back to it

later. I infer from your apparent silence about these matters during these exchanges

that by mid-February, that was not your position? I may be wrong there. 5

DR TOBIN: The need for two?

COMMISSIONER: Yes.

10

DR TOBIN: I think that’s possible. I may not have been aware of the need either.

COMMISSIONER: It seems odd to me this notion of a serendipitous availability of

samples from people who had been sampled for flu rather than stipulating that, “If

you test for flu, you must test for COVID.” When I say “test”, take a swab for later 15

testing for COVID.

DR TOBIN: Yes. I think - - -

COMMISSIONER: Otherwise, it just seems random, not thorough, not scientific. 20

DR TOBIN: Yes. I’m not sure about Dr McAnulty, but it was my understanding at

that time, I think, that the swab that was taken for flu testing may well be appropriate

– may be fine.

25

COMMISSIONER: Thank you. So that’s why I would like if you could reconstruct

for me - - -

DR TOBIN: That time - - -

30

COMMISSIONER: - - - with reference to documents if you’ve got it, when you

changed your mind, do you think. Thanks.

MR BEASLEY: Just finishing off this email response from Dr McAnulty at 11.54

on 13 February, we focused a lot on the very big problem. I think everyone in this 35

room understands, but I will put it on the record in any event, part of the very big

problem – having discussed this can become a nasty disease, part of the very big

problem, of course, is this is a novel virus and we don’t, as a species, have immunity

to it, correct?

40

DR TOBIN: Yes.

MR BEASLEY: And the second line there from Dr McAnulty, where he says:

Local transmission is currently mainland China “but it may change in the 45

future”.


MR BEASLEY SC

Of course that was a form of informed speculation by him at the time, but it’s of

course become true in that we know that by the middle of March this disease had

gotten to about 175 countries; Correct?

DR TOBIN: Yes. 5

MR BEASLEY: Yes. I said I needed to take you to a couple of more emails that all

lead up to a telephone conference – these emails are not copied, cc’ed, to you so you

may not have got them, but I’m just wondering again if you had any discussions

around them. The first is behind tab 7. You’ll see an email there from Dr Gupta – 10

15 February at 13.14. Again it’s to Dr Chant, Dr McAnulty, Dr Hess, Professor

Ferson etcetera – not to you. You’ll see in part 4:

Cruise specific issues

15

Dr Gupta’s question about who will be tested and screening panel to be used,

whether disembarkment should not occur until all test negative. So she’s again

raising her notion of, “I want – if we’re going to test – if the ship warrants swabs and

testing, I don’t want people off the ship until the test results are in.” Correct?

20

DR TOBIN: Yes.

MR BEASLEY: And she raises, if you go over the page, in the prior email of 14

February, that she sent late at night, 11.31, right over the page, it’s a long email. If

you go to the – it’s the second last page, third last paragraph, do you see a paragraph: 25

In light of the recommendations tonight from CDNA.

DR TOBIN: Yes.

30

MR BEASLEY:

…it might be prudent for any respiratory outbreak involving two or more

persons who are not of the same travelling party that anyone with respiratory

symptoms as part of that outbreak is tested for novel coronavirus prior to 35

arrival at port. Perhaps this has been considered in the updated SOP –

which I would assume to mean Standard Operating Procedures:

…but we haven’t seen it. 40

Again, this is Dr Gupta expressing the view that if there’s even two people with

respiratory symptoms as part of an outbreak, again, she wants testing prior to the ship

coming into a port. The reason I’m drawing your attention to those two emails, and I

also ask you to look at the email behind tab 8 - - - 45


MR BEASLEY SC

COMMISSIONER: Before you do that – outbreak – do you understand that as

meaning two or more cases?

DR TOBIN: Not necessarily

5

COMMISSIONER: What do you understand it as meaning?

DR TOBIN: I think that formally the definition of an outbreak is more cases

occurring than expected … that place and period of time. There is a great variation

in what - - - 10

COMMISSIONER: You are familiar with the usage that stipulates an understanding

for the context in which the usage is found of “two or more cases”, aren’t you, for

outbreak?

15

DR TOBIN: In the setting of an aged care facility, we would call that – particularly

in a short – in a particular defined period of time - - -

COMMISSIONER: Could be the beginning of an outbreak.

20

DR TOBIN: - - - could be the outbreak, say, for - - -

COMMISSIONER: And so it’s treated as an outbreak for reporting and preventive

purposes; is that right?

25

DR TOBIN: Yes. It depends a little bit on the particular disease we’re talking

about. So if we have a single case of measles in New South Wales, we would call

that an outbreak and - - -

COMMISSIONER: That’s because of an understanding of the high degree of 30

contagiousness and seriousness of infection; is that right?

DR TOBIN: Yes.

COMMISSIONER: By mid-February, this was a disease about which there was 35

warranted similar caution; is that right?

DR TOBIN: Yes, yes.

COMMISSIONER: And a cluster, should I understand that as being, as it were, an 40

outbreak with known or inferred history to connect the cases?

DR TOBIN: My interpretation of a cluster would be when there are cases identified

that are suspected to have links, say, for – in a particular geographical area - - -

45

COMMISSIONER: Known or inferred contact; is that right?


MR BEASLEY SC

DR TOBIN: Yes, but I suppose where there is further investigation to see if you can

confirm those links - - -

COMMISSIONER: Genetically, you mean?

5

DR TOBIN: Genetically or by ..... questionnaire to – and, as I say, if the cases are

known to have contact - - -

COMMISSIONER: Well, questionnaires will only supply information from which

inferences can be drawn; is that right? 10

DR TOBIN: Yes.

COMMISSIONER: Whereas genetics of the virology might actually provide more

solid evidence; is that right? 15

DR TOBIN: Yes, yes. That’s right.

MR BEASLEY: When you’re considering outbreak, though - - -

20

COMMISSIONER: I’m sorry.

MR BEASLEY: - - - you’re considering outbreak in relation to how you would

approach it for a cruise ship, correct? When you’re talking about respiratory

outbreak – when people are talking - - - 25

DR TOBIN: Yes.

MR BEASLEY: - - - respiratory outbreaks in these emails, it’s in the context of a

revised cruise ship protocol, correct? 30

DR TOBIN: In these emails? Sorry. Yes.

MR BEASLEY: Yes, yes.

35

DR TOBIN: I was talking in general terms.

COMMISSIONER: So what did you understand “outbreak” to mean in that

context? How many cases?

40

MR BEASLEY: Well, in fairness, there is – the documents that are prepared define

that. So it might be better that we get to those documents first and ask the witness.

COMMISSIONER: Well, some do and some don’t. I would like you to think about

this, if I can just draw to your attention the concern I have. I, for the life of me, do 45

not understand why one would refuse to consider the existence of an outbreak with

numbers that happened to be less than one per cent of the number of heads of


MR BEASLEY SC

passenger and crew on board, bearing in mind that in other epidemiological and

public health usage, an outbreak has to do with absolute number for reasons which

are obvious, bearing in mind that two could well be the harbinger of 20,000 by

multiplication and exponential growth; isn’t that right?

5

DR TOBIN: Yes. That’s right.

COMMISSIONER: Well, just to put some context on this, I take it you have some

familiarity with the communicable diseases intelligence documents put out by the

Australian Government Department of Health? 10

DR TOBIN: Yes.

COMMISSIONER: Including a series of COVID-19 Australia epidemiology

reports? 15

DR TOBIN: As I mentioned before, I was aware of them. I hadn’t looked at them

closely at that time.

COMMISSIONER: Is that because you didn’t regard them as containing cogent 20

material?

DR TOBIN: It’s rather that the information within them was supplied by us and

other health departments - - -

25

COMMISSIONER: You already knew it?

DR TOBIN: I feel like – yes, for most of it.

COMMISSIONER: Well, the editorial advisory board includes David Durrheim 30

and Mark Ferson among others. You understood that?

DR TOBIN: Yes.

COMMISSIONER: And Linda Selvey? 35

DR TOBIN: Yes.

COMMISSIONER: As at 8 February 2020 in report number 2, in table 2, a list of

cumulative confirmed cases globally is listed by countries with one exception. The 40

countries start with Mainland China and go down to Sweden. Mainland China was

then as at 1900 on 8 February 2020 22,755 cumulative cases, I should say, cases that

week with a cumulative total of 34,546, and Sweden at the same time was zero that

week and only one in total, just to give a measure of how terribly things have moved

on. The United – Australia was three that week and 15 overall, that is 15 from 45

December. The United States was five that week and 12 overall. That’s five


MR BEASLEY SC

individuals, not 5,000. 12 individuals, not 12,000. The one exception to this list of

countries was the second in the list and it’s just called:

Cruise Ship

5

It’s the Diamond Princess, is that right?

DR TOBIN: I believe so, yes.

COMMISSIONER: And it then – it, at that time, had the second largest incidents, 10

64 that week, all in that week. That was the – at that point, the first week’s

observations. Now, doesn’t that suggest that by mid-February, on any view of it, a

cruise ship, any cruise ship was indicatively a site to consider very carefully?

DR TOBIN: Yes. I – I think, these emails and communications reflect that we were 15

taking it very seriously as a major cause of concern for New South Wales and we

were investing a lot of effort into working out how to – the best way of managing the

risk from cruise ships. So the Diamond Princess was a – although we understood

that cruise ships were always a risk of infectious disease because they were a good

environment for spreading, sometimes, an infectious disease, and I think, the 20

Diamond Princess experience made us all very aware of that risk.

COMMISSIONER: Well, that’s no doubt why it was listed in the country list as the

one thing that wasn’t a country was something that was worth reporting. That wasn’t

intended as some kind of grim humour. That was a serious epidemiological report, 25

wasn’t it?

DR TOBIN: Yes. Yes.

COMMISSIONER: Well, now, I still don’t understand how it was on this exchange 30

of 12 and 13 February, given an understanding of incubating period, I don’t

understand how it could be said that there was care then being taken of a requisite

standard to guard against the spread of the virus in Australia. Because there is no

account taken of people of people going off the ship who, for all you knew, already

had it, had not yet displayed symptoms and would go onto spread it. That’s as at 12 35

and 13 February. Take your time. I would like you to look at that exchange of

emails that Mr Beasley is taking you through and, please tell me, if I have missed

something where, I think, there are four colleagues, two of them communicating, but

two of them reading, seemed to me, at least, to raise nothing about that possibility,

people already infected, no way of you knowing, because there wasn’t going to be 40

testing, released into the community, possibly, to spread the disease.

DR TOBIN: Sorry. I’m not quite sure of the – the question.

COMMISSIONER: Well, if you look at the exchange of emails - - - 45

DR TOBIN: Yes.


MR BEASLEY SC

COMMISSIONER: - - - in which you were copied in which you, I take it, you read

at the time. Could you show me, is there any consideration in them of steps to guard

against that possibility I’ve just described?

DR TOBIN: Well, I think, all of this was about trying to improve our surveillance 5

of cruise ships and then assess the risk and manage the risk, minimise the risk of

cruise ships - - -

COMMISSIONER: But what about the possibility of people who already had it,

without symptoms, they weren’t going to be tested, they were going to disembark. 10

What was going to be done about that? What was being, I should say, discussed

among the four of you about that?

DR TOBIN: Well, I think, the question of asymptomatic risk wasn’t explicitly

addressed. But we were certainly aware that, of the risk of people going on to a ship 15

without symptoms and then, subsequently, developing symptoms and being a cause

for spread. And I think, if that’s - - -

COMMISSIONER: No. No. No. You understood that you could – that there was a

possibility, an un-excluded possibility that you could spread before you had 20

symptoms, didn’t you?

DR TOBIN: We – yes - - -

COMMISSIONER: Well, you tell me. I thought, that’s what you had earlier, 25

understood what in the nature of things?

DR TOBIN: Yes. I need to check on the date where I – that was first raised. But I

– think that, in our considerations, we would have thought of that as a very small

risk. But real, nonetheless. 30

COMMISSIONER: In retrospect, that seems to have materialised, hasn’t it?

DR TOBIN: Yes. I think, there has been more information afterwards about and

more examples of where that has happened. 35

COMMISSIONER: With the Ruby Princess in particular, it seems to have

materialised as a risk, isn’t that right?

MS FURNESS: Commissioner, can I be heard on the parameters of your question? 40

Is it in relation to asymptomatic people or is the risk more general?

COMMISSIONER: I would have thought my question was clear. The risk that

people, without symptoms, who were already infected went off this ship and affected

others has materialised, in your opinion, has it not? 45

DR TOBIN: Yes. I understand there are secondary cases. Yes.


MR BEASLEY SC

COMMISSIONER: Well, a secondary case is somebody who has been infected by

another person called a “primary case” is that right?

DR TOBIN: Yes. Yes. Sorry.

5

COMMISSIONER: But those – but that language is not much use, because those

primary cases are presumably secondary to someone else. Is that right?

DR TOBIN: Yes.

10

COMMISSIONER: It’s just the spread by transmission of the virus, isn’t it? It

ramifies and produces, depending upon your reproduction rate, the possibility of

exponential growth, is that right?

DR TOBIN: Yes. ..... relation - - - 15

COMMISSIONER: That’s rudimentary for you as an infectious disease public

health epidemiologist, isn’t it?

DR TOBIN: Yes. In this circumstance, yes. 20

COMMISSIONER: Thank you. All right.

MR BEASLEY: We are, of course, Dr, only talking about a draft procedure,

nothing has been finalised yet. And you’re engaged in email exchanges or, at least, 25

you’re being copied in. You’re not sending much back yourself, but you’re being

copied in on a process of turning a draft or a rough draft into something that’s final

procedure, hence these exchanges between a number of health professionals, correct?

DR TOBIN: Yes. 30

MR BEASLEY: What I was going to ask you, if you could go, please, amongst this

exchange of emails behind tab 8, you will see, again, there, an email – again, it’s

from Dr Gupta to Dr McAnulty, Professor Ferson and Dr Hess, amongst others. The

reason I am taking you to it, even though it doesn’t appear to have been sent to you is 35

that there was, shortly after this, a telephone hook up to discuss the protocol that, I

believe, you were involved in. If I could just draw your attention again, in the email

of 15 February 2020 at 4.33 pm, Dr Gupta addressing Dr McAnulty and Professor

Ferson says this, do you see the paragraph commencing:

40

Main point of difference

DR TOBIN: Yes.

MR BEASLEY: So: 45

Main point of difference is that, in my view, in current situation


MR BEASLEY SC

Now, we will have to ask Dr Gupta what she meant by “current situation” but I

assume, it’s in relation to the spread of COVID-19 on cruise ships:

is that we should wait for a test result irrespective of risk category before

announcing pratique. The reason is that, operationally, people will still 5

present to EDs, GPs, etcetera and that poses a different set of challenges.

Better to be clear that no one has coronavirus before leaving.

Now, first question is, do you recall receiving or reading this email?

10

DR TOBIN: No.

MR BEASLEY: No. If you go over to tab 9 and, I think, this should be the last set

of questions I ask, Commissioner, before we give the witness a break - - -

15

COMMISSIONER: Yes. That’s - - -

MR BEASLEY: - - - because we have been going for quite some time.

COMMISSIONER: No. That’s fine, thanks. 20

MR BEASLEY: Tab 9, you will see an email:

Cruise Ship Risk Assessment Meeting, organiser: Professor Ferson

25

Under:

Agenda

You’re listed as a panel member, do you see that? 30

DR TOBIN: Yes.

MR BEASLEY: Did you take part in this meeting?

35


MR BEASLEY: I can see you’re hesitating - - -

DR TOBIN: Yes. 40

MR BEASLEY: - - - so let me ask you this. Do you recall having some form of

meeting to discuss the cruise ship risk assessment procedures in about the middle of

February?

45

DR TOBIN: I think so, yes.


MR BEASLEY SC

MR BEASLEY: All right. With, amongst other people, for example, Dr McAnulty,

Professor Ferson and Dr Gupta?

DR TOBIN: Yes.

5

COMMISSIONER: I take it, that’s what the witness is referring to. Is that what

you’re referring to in paragraph 16 of exhibit 28 in your statement?

MR BEASLEY: That’s why I’m asking the question.

10

COMMISSIONER: Yes. I know.

MR BEASLEY: So I think, you’re right Commissioner, yes.

COMMISSIONER: Yes. Well, I’m not quite – I’m not sure. 15

MR BEASLEY: Yes.

COMMISSIONER: That’s the same - - -

20

DR TOBIN: Yes.

MR BEASLEY: Sorry, to help you - - -

DR TOBIN: Sorry. Yes. 25

MR BEASLEY: - - - do you see, you’ve got there:

I believe it was agreed

30

COMMISSIONER: Is that your recollection?

DR TOBIN: Yes.

MR BEASLEY: All right. 35


DR TOBIN: Sorry.

40

MR BEASLEY: What I wanted to ask you was, do you have a recollection of Dr

Gupta raising, at this joint teleconference on 15 February, the view that she has, if I

may say so, very firmly, expressed for a number of days now, that she has now used

the word “pratique” but anyway:

45

Disembarkations should not be allowed on cruise ships, pending test results for

COVID-19.


MR BEASLEY SC

Do you recall that being raised as a topic?

DR TOBIN: I’m sorry, I don’t recall. No.

MR BEASLEY: Do you recall, even if you don’t recall it being raised at this 5

teleconference meeting, having a discussion in relation to that, what seems to be a

pretty important issue, at any stage, with your colleagues, mentioned here? Did you

have a discussion with Dr Gupta about her view, “I don’t think people should be let

off ships until the test results are in.”?

10

DR TOBIN: I don’t think I did.

MR BEASLEY: All right. Did you – do you recall having a discussion with either

Dr McAnulty or Professor Ferson about either the view that people should stay on

board a ship until the test results are in or Dr Gupta’s view that she was advocating 15

for that people shouldn’t be allowed to – passengers shouldn’t be allowed to

disembark until test results for COVID-19 are known?

DR TOBIN: I don’t think so.

20

MR BEASLEY: You don’t. All right.

COMMISSIONER: We will break at this point. Doctor, one further question, an

alternative approach to not letting anybody off until everybody has tested negative

for COVID-19 by lab testing would be that everybody goes into enforced quarantine. 25

Is that right?

DR TOBIN: That’s one option. Yes.

COMMISSIONER: And that’s what has happened after the Ruby Princess, isn’t it – 30

anybody who arrives goes into quarantine?

DR TOBIN: Yes.

COMMISSIONER: Enforced quarantine, not self-isolation? 35

DR TOBIN: Sorry for the terminology, but yes – it’s in the quarantine order that

was, the public health order issued, I think, on 16 March came into effect on 17

March - - -

40

MR BEASLEY: You might be - - -

DR TOBIN: - - - required people to go into - - -

MR BEASLEY: I think, you’re at cross-purposes now. There was, certainly, by the 45

time the Ruby Princess arrived on 19 March, all international travellers had to self-


MR BEASLEY SC

isolate for 14 days, whatever that means. But, I think, the Commissioner is talking

about something else.

COMMISSIONER: I’m talking about enforced quarantine.

5

DR TOBIN: Yes.

COMMISSIONER: Not self-isolation. Going into a hotel, guarded by people, not

allowed to leave, see what happens over the next 14 day, that’s what happens now,

isn’t it? 10

DR TOBIN: For international arrivals, yes, through the hotel quarantine systems,

sorry. Yes.

COMMISSIONER: And that is, in epidemiological or epidemic or pandemic 15

control terms, that would be more or less, an equivalent to not letting people

disembark unless they tested negative by lab testing. Is that right?

DR TOBIN: I think, we would want to have someone go through that incubation

period, that possible incubation period. 20

COMMISSIONER: Okay. Thank you.

DR TOBIN: Ye

25

COMMISSIONER: So if anything, quarantine is safer because it means you’re not

taking the risk of a negative test either being a false negative or having caught the

person too early for a viral load to produce a positive. Is that right?

DR TOBIN: Yes. 30

MR BEASLEY: I want to explore this later. But I think, Commissioner, what

you’re referring to is that on 22 March 2020, that is, three days after the ship has

arrived, New South Wales passed additional measures being that:

35

No cruise ship crew or passengers to be allowed to disembark New South

Wales until anyone with symptoms consistent with COVID-19 are assessed,

swabbed and tested for COVID-19 and found to be negative.

COMMISSIONER: That’s not actually what I’m talking about - - - 40

MR BEASLEY: Right.

COMMISSIONER: - - - I’m talking about testing everyone, not just those with

symptoms. Do you understand? Dr Gupta was raising matters that, I take it, all of 45

you were interested in. Namely, “What should we be doing before letting people off

the ship to scatter?” Is that right?


MR BEASLEY SC

DR TOBIN: Yes.

COMMISSIONER: And what I am raising with you is you could test everybody

with indicative symptoms or not and not let anybody else – not let anybody off

unless everybody was negative, accepting that that has the risk that you have just 5

well-explained, with respect. Or you could quarantine everybody, regardless of

indicative symptoms, and observe them for the 14 days that currently seems to be the

conventional understanding of a safety margin. Is that right?

DR TOBIN: Yes. 10

COMMISSIONER: What else could you do? At that time, in February, what else,

seriously, was in mind to address the risk, apart from those two things?

DR TOBIN: Certainly, that option of mass quarantine was in our – in our potential 15

response procedures that we hadn’t fully fleshed out. But, certainly, that was a

possibility. And I think, that’s when they go to later – we had raised other

possibilities depending on the level of risk concerned. And I think, our preferred

option if the risk was at a medium level was to have people who were symptomatic

stay on board and be tested and stay on isolation – respiratory isolation until they had 20

a result back or, possibly, kept at another place. But for other people - - -

COMMISSIONER: That would knowingly allow possible asymptomatic cases to

spread, wouldn’t it?

25

DR TOBIN: So I - - -

COMMISSIONER: Yes?

DR TOBIN: There’s a small risk, yes. 30

MR BEASLEY: Or pre-symptomatic, as well?

DR TOBIN: Yes.

35

COMMISSIONER: Asymptomatic at the time. If they later developed, they would

turn from “a” to “pre,” I suppose. But what you’ve just described as inexpedient as

of, say, the third week of February in your professional thinking would knowingly do

nothing about the risk of asymptomatic transmission. Is that right?

40

DR TOBIN: For asymptomatic? Yes. I think, our advice for those well passengers

who were allowed to disembark would have been to be on the alert for symptoms and

to seek medical care if symptoms developed.

COMMISSIONER: By which time they may have transmitted it to others? 45

DR TOBIN: Yes. There is a small risk, yes.


MR BEASLEY SC

MR BEASLEY: But – I was going to ask you, what do you mean by “well”? You

mean someone with no symptoms?

DR TOBIN: Yes.

5

MR BEASLEY: Not necessarily without the disease?

DR TOBIN: No.

MR BEASLEY: Yes. All right. I think, we should have a break now, 10

Commissioner.

COMMISSIONER: Yes. I do too.

MR BEASLEY: We will, no doubt, get back to this subject when we get to the risk 15

assessment.

COMMISSIONER: We will take a break till 20 to.

MR BEASLEY: Till 20 to? 20

COMMISSIONER: 20 to.

MR BEASLEY: Any chance on quarter to?

25

COMMISSIONER: All right. Quarter to.

MR BEASLEY: Thank you.

30

ADJOURNED [11.33 am]

RESUMED [11.47 am]

35

COMMISSIONER: Very well.

MR BEASLEY: Dr Tobin, because we were talking briefly about that telephone

conference you’ve mentioned in your statement that, admittedly, you have a – and 40

reasonably so – not a strong recollection of. And you’d already told the

Commissioner that you didn’t recall Dr Gupta’s advice being discussed in that call,

that is, people should be – no one should be allowed off the ship until test results are

in. I’m just wondering if that, at that telephone conference or at some other stage,

were you ever made aware of a proposal from New South Wales Health to ask the 45

Port Authority to collect swabs off ships before the ship docked and get urgent


MR BEASLEY SC

testing done, test results in before the ship actually berthed and disembarked

passengers? Were you – have any - - -

DR TOBIN: Yes.

5

MR BEASLEY: Was that discussed at the meeting we’ve been talking about on the

15th of February?

DR TOBIN: I don’t recall. I suspect not, but I don’t know.

10

MR BEASLEY: Well, who do you think advised you that consideration was being

given to the Port Authority being asked to go and collect swabs?

DR TOBIN: I think it’s my colleagues in PHEOC and the initiating - - -

15

MR BEASLEY: Your colleagues? Sorry. You need to - - -

DR TOBIN: In the – in the Public Health Emergency Operations Centre.

MR BEASLEY: Yes. 20

DR TOBIN: I think we had been initiating discussions with the Port Authority. I

think it might have been Dr Selvey first.

MR BEASLEY: Right. 25

DR TOBIN: But I was certainly involved in some of those discussions as well.

MR BEASLEY: All right. And, ultimately, that procedure wasn’t put in place. Can

you tell the Commissioner your understanding why it wasn’t put in place? 30

DR TOBIN: Well, I think the initial suggestion we had was to see if it was possible

that the pilot went out to meet cruise ships - - -

MR BEASLEY: Yes. 35

DR TOBIN: - - - to bring them back and, as part of that process, they could collect

samples and hand them off to someone else to bring back more quickly. And from,

as I recall, the Port Authority were uncomfortable doing that and putting – felt that

that increased the risk to their pilots, I think. And I think they had suggested that 40

they could take a Public Health person out onto the sea and do it. And I think we

were very uncomfortable that an untrained health professional would be asked to do

that and, given the occupational risks and the health and safety risks that as an

untrained person going to collect those samples. I think subsequent to the Port

Authority saying that they didn’t think that was possible, I think we pursued other 45

options, and including discussions with the police and perhaps involving the

maritime police in those – in that scenario.


MR BEASLEY SC

MR BEASLEY: No procedure was worked out with the maritime police, though,

either?

DR TOBIN: Not at that time. No.

5

MR BEASLEY: No. Can we see if we can get some context for this? If you look

at – if you go to tab 10, you see Dr McAnulty sent you another draft of Revised Draft

Cruise Ship Protocol in an email of 16 February at 2.18 pm, addressed to yourself

and Professor Ferson. Over the page, you’ll see that that draft, which I don’t want to

ask you any questions about now, but save for you’ll see, at the very top of this 10

proposed procedure, it still contemplated that:

A health team will meet all cruise ships.

Do you see that? 15

DR TOBIN: Yes.

MR BEASLEY: If you go to the document behind tab 18. Sorry. Tab 16. My

apologies. You will see again this is an email from Dr McAnulty to you two days 20

later, 18 February, asking you what you think of this draft of the procedure and

inviting you to make edits. If you go to this draft, which is 5 pm, 18 February 2020,

you will see it’s no longer contemplated that a health team will meet all cruise ships;

that’s deleted. Can you tell us – can you tell the Commissioner why that got dropped

off as a process that would be followed? That is, why was it, as at 16 February, a 25

health team was going to meet all cruise ships, by the 18 February draft, that

procedure has been abandoned?

DR TOBIN: It’s my understanding that the experience we gained doing risk

assessments during this time and the – and, clearly, we had clearly identified that 30

there were cruise ships that we considered at low risk for Coronavirus and – and they

weren’t recommended to have a health risk team. And so I think that experience

gained by those assessments informed this change in the procedure.

MR BEASLEY: It has nothing to do – sorry. From your answer, should the 35

Commissioner assume it had nothing to do with the failure of Health to reach some

agreement with the Port Authority about having pilots take the swabs off ships?

DR TOBIN: I don’t think it had anything to do with it.

40

MR BEASLEY: All right. That’s not your understanding. Can I ask you where it

now says that:

Cruise ships that have arrived from international waters will be assessed by the

Chief Human Biosecurity Officer. 45

Obviously, you understood that that was a reference to you; correct?


MR BEASLEY SC

DR TOBIN: Yes.

MR BEASLEY: And then it’s got “criteria for the risk”. The first is:

Passengers and crew in high risk areas in the 14 days prior to contact with a 5

confirmed case of COVID-19.

So that has a couple of matters to be ticked off. First of all, there’s got to be a

confirmed case and then it’s got to be in a high risk area. The second bullet point,

though, says this: 10

There is an undiagnosed respiratory illness among passengers or crew that is

clinically compatible with COVID-19.

Now, I assume, when you read that – and tell me if you had a different view – that 15

“clinical compatible with COVID-19” meant consistent with the clinical criteria of

the CDNA; correct?

DR TOBIN: Yes.

20

MR BEASLEY: That is, fever or acute respiratory illness with or without a fever?

DR TOBIN: Yes.

MR BEASLEY: All right. Okay. You will see, also, that it – and this is a change 25

from the 16 February to this 18 February draft. Where you see “Pre-arrival

requirements”, the third bullet point – I’ll come back to the second one – but the third

bullet point:

Ensure all passengers with respiratory symptoms and/or fever are isolated 30

while on board.

Do you see that?

DR TOBIN: Yes. 35

MR BEASLEY: Was that the result of a discussion you’d had with your colleagues

that, because of the clinical criteria for a case of COVID-19, it had now become

important to isolate not just people with fevers, but people just with acute respiratory

disease? 40

DR TOBIN: Yes.

MR BEASLEY: Correct:

45

Actively ask passengers and crew if they have respiratory symptoms or fever –


MR BEASLEY SC

again, you’re wanting to catch that broader group, not just people with a fever;

correct?

DR TOBIN: Yes.

5

MR BEASLEY:

…and ask them to present to the ship’s doctor for assessment free of charge.

Tell me if I’m wrong, but the evidence so far is that “assessment free of charge” is 10

that so people who do have relevant symptoms don’t not go to the doctor because

they might have to pay for it.

DR TOBIN: Yes. To remove that barrier.

15

MR BEASLEY: Yes. Okay. All right. Again, 48 hours before arrival, the cruise

ship is to provide a copy of the full Acute Respiratory Diseases Log, which, again,

you’re interested in receiving information about patients with fever or acute

respiratory illness, ie, even if you don’t have a fever.

20

DR TOBIN: Yes.

MR BEASLEY: All right. We now have this term that the Commissioner raised

with you earlier. At the top of the page, these words “respiratory outbreak”, with the

footnote 3: 25

Respiratory outbreak is defined as greater than one per cent of people on

board affected.

I know you’ve said in your statement that you read, at the time, that, by the words 30

“respiratory outbreak” you were taking that to be a reference to an influenza-like

illness rather than the broader acute respiratory disease without a fever; correct?

DR TOBIN: Yes.

35

MR BEASLEY: Can I just ask you why that was the case for this particular disease,

first of all, knowing that it can present without a fever, but, secondly, in the balance

of the rest of these procedures, you seem to be interested in always, in all other parts,

that broader group of people with respiratory symptoms whether or not they have a

fever, including making them, in effect, prisoners in their own cabin, even if they 40

don’t have a fever. Why did you interpret “respiratory outbreak” being limited to

influenza-like illness being something that obviously usually involves a fever? Why

did you read it that way?

DR TOBIN: My recollection is that – and we were most interested in those 45

epidemiological criteria of travel history - - -


MR BEASLEY SC

MR BEASLEY: Yes.

DR TOBIN: - - - and - - -

MR BEASLEY: But this is a clinical criteria we’re talking about now. 5

DR TOBIN: Yes.

MR BEASLEY: Yes.

10

DR TOBIN: And that contact of someone with a case and - - -

MR BEASLEY: Yes.

DR TOBIN: - - - certainly, for those people, we would be interested in any 15

respiratory symptoms that they developed. But, putting that aside, and a cause for

concern – more concern – would be signs of a serious respiratory illness, outbreak,

even in the absence of those issues on board. And I suppose we wanted to separate

that from the common cold type of presentations of very minor illness and that we

expect in a large group of people in this situation. So for – in looking at defining an 20

outbreak, we’re looking for that more severe end of the spectrum.

MR BEASLEY: All right. Now, you’ll have to forgive me, I’m struggling with

that, just as a non-doctor, as a matter of logic. We have a disease – a new disease. A

SARS, not a flu, that presents, at least at a reasonable percentage of the time, with 25

symptoms that don’t involve a fever. And you are interested in your procedures in,

for example, having people with respiratory symptoms without a fever isolated in

their cabins. Why, when you come to consider what is a respiratory outbreak on

board, given we’re talking about a disease that can manifest itself without a fever,

why are you narrowing it to an influenza-like illness? 30

DR TOBIN: I suppose it was part of a risk assessment. And we felt there was value

in defining and describing an outbreak that would be of value to the cruise ship

medical teams, to guide their reporting processes, but why, though, isn’t it an

outbreak that involves acute respiratory disease without a fever just as important in 35

the assessment of risks related to COVID-19 just as important as an outbreak of an

influenza-like illness? They might both be important, but why is ILI more important

than consideration of an outbreak of acute respiratory disease?

DR TOBIN: I think if there’s increased cases of acute respiratory illness and they’re 40

all of a very mild nature, and that would lend itself – I’m suggesting a more mild

cause, like a common cold or ..... virus infection should expect, but, certainly, we

didn’t interpret this as a hard and fast criteria - - -

MR BEASLEY: No. 45


MR BEASLEY SC

DR TOBIN: - - - and we, certainly, in our assessments, we were very happy to

assess a cruise ship as being at more risk even in the absence of respiratory .....

particularly if there were concerns on the epidemiological criteria of concern.

MR BEASLEY: Can I put this to you and ask you to respond to the Commissioner, 5

given what’s in the rest of this draft procedure, that is, that it’s really important to

consider both passengers with not only fever but those with respiratory symptoms

without a fever, do you concede that there seems to be a level of inconsistency in

relation to that interest and those requirements with isolating respiratory outbreak as

only being a reference to an influenza-like illness? 10

DR TOBIN: I agree it could have been clearer and part of the advice, I think, also

reflects that our general advice to cruise ships about how to manage potential

infectious diseases on board, in many sense, people with acute respiratory infections,

even in the absence of fever, even prior to COVID-19, it would be a good idea to 15

recommend isolating those people to stop the spread of that particular virus.

MR BEASLEY: I don’t mean this rudely. I’m not quite sure you’ve answered my

question.

20

DR TOBIN: That’s all right.

MR BEASLEY: I’m really asking you this. Why – the number of passengers

presenting with influenza-like illness symptoms, that is, respiratory symptoms and a

fever of some kind, I understand why that would be of interest to a risk assessment 25

panel. What I’m putting to you, though, is why isn’t really – in the circumstances of

a disease that has clinical criteria that includes acute respiratory illness, with or

without a fever, that is not a flu, it’s a SARS, why wouldn’t the outbreak group you

would be most interested in looking at is that which fits the clinical criteria for

COVID-19, that is, people that might have a fever, but also all those people that have 30

acute respiratory disease with or without a fever?

DR TOBIN: I suppose we would be applying the complete suspect case definition

of CDNA, which includes those epidemiological features. So in the absence of those

- - - 35

MR BEASLEY: I want you – I want you to forget about – I want you to forget - - -

MS FURNESS: Commissioner, the witness has been interrupted a number of times

now. Perhaps he might be able to answer - - - 40

MR BEASLEY: No, I’m just assisting to direct the witness to my – because I

wasn’t - - -

COMMISSIONER: Doctor - - - 45

MR BEASLEY: I specifically wasn’t talking about epidemiological criteria.


MR BEASLEY SC

COMMISSIONER: Could you - - -

MR BEASLEY: We’re talking about clinical criteria.

COMMISSIONER: Could you please direct your attention to Mr Beasley’s 5

question, which was addressing clinical criteria.

DR TOBIN: I’m sorry. It’s difficult to separate them because they’re part of a

combined case definition.

10

COMMISSIONER: Well, we will come to that. I can assure you, but - - -

DR TOBIN: But I will try. Yes.

MR BEASLEY: Yes. I’m not asking you – I’m not asking you about what 15

constitutes a suspect case at the moment and I’m asking you to forget for the time

being epidemiological criteria, whether it’s China or international travel or whatever.

Just put that out of your mind for a moment. What I’m putting to you is in the

totality of this document, you are clearly interested in people that fall within a group

that includes not only those with fever or an ILI, but those with acute respiratory 20

disease even without a fever to the extent that you are asking cruise ships to put

people without a fever, as long as they’ve got respiratory symptoms, in isolation in a

cabin, which is a form of prison, I would’ve thought. Given that and given that

you’re talking about respiratory illness clinically compatible with COVID-19,

clinically compatible, why restrict a respiratory outbreak, those words, to only those 25

passengers who have an ILI rather than taking the view, “We need to consider this

broader group that includes people with respiratory symptoms that don’t have a

fever”?

DR TOBIN: I can only ..... and perhaps direct you to the footnote at that page, 30

which mentions about cases of mild respiratory illness are expected on a cruise ship

and - - -

COMMISSIONER: Cases of ILI are expected on board a cruise ship? So that’s not

the factor that makes it of less interest, is it? 35

DR TOBIN: I think there’s mild respiratory illnesses and on the balance of

probabilities and - - -

COMMISSIONER: You don’t actually mean the balance of probabilities, do you? 40

DR TOBIN: That - - -

COMMISSIONER: More than 50 per cent, you mean?

45


MR BEASLEY SC

DR TOBIN: In the community, we would submit mild respiratory illness to be

predominantly caused by adenoviruses, rhinoviruses, common things, and we would

expect the same on board a ship, it’s a similar community - - -

COMMISSIONER: But you’re not actually operating on the balance of 5

probabilities, are you?

DR TOBIN: I think we’re making a risk assessment - - -

COMMISSIONER: Which is much – something is realistic and requires effort to 10

prevent it far below the level of which you’re saying more likely than not that is

COVID, surely? Did you - - -

MR BEASLEY: It can’t be balance of probabilities, Doctor, because that would be

tossing a coin. That can’t be right, can it? In terms of assessing risk, you’re not 15

tossing a coin, are you?

DR TOBIN: Well, perhaps I – perhaps I misspoke it.

COMMISSIONER: When you say “balance of probabilities”, do you understand – 20

do you use that phrase to mean the outcome in question is more likely than not? Is

that what you mean by “balance of probabilities”?

DR TOBIN: Yes. The - - -

25

COMMISSIONER: But your risk assessment and your preventive work is not

carried out on a more likely than not basis, is it? I take it you’re interested in

preventing risks at a much lower level than “more likely than not”. If there’s a five

per cent chance of something disastrous happening, that’s not the balance of

probabilities, is it? 30

DR TOBIN: Sorry. Sorry. If I can try and clarify my – well, using the term

“balance of probabilities” is the probability that a mild respiratory illness is caused

by – explained by something else.

35

COMMISSIONER: Certainly, but it might be explained by something of interest to

you, namely, COVID; is that right?

DR TOBIN: Yes.

40

COMMISSIONER: It’s against that possibility that your preventive professionalism

comes into operation; isn’t that right?

DR TOBIN: I think that’s where we have to assess the risk and in assessing the risk,

we balance those probabilities. 45


MR BEASLEY SC

COMMISSIONER: I’m being thrown because I’m sure you – as lawyers, we

actually do use the expression “balance of probabilities”, but it may be culturally - - -

DR TOBIN: Sorry.

5

COMMISSIONER: - - - intellectually completely different. I don’t want to judge

you wrongly on the basis of your use of a term with which I’m familiar in my

professional life. You don’t mean, do you, that the outcome of interest here, COVID

infection, needs to be, in your opinion, more likely than not, that is, more than a 50

per cent chance, in order for you to care about it? 10

DR TOBIN: No.

COMMISSIONER: That would be a travesty of your whole professional

orientation, wouldn’t it? 15

DR TOBIN: No. I’m sorry. That’s not - - -

COMMISSIONER: You’re interested in something which is understood to be very

much smaller than that as incidental risk and it’s your job to protect us from that? Is 20

that – have I got that correct?

DR TOBIN: Yes. I’m sorry. I was using “balance of probabilities” in a different

way. I’m sorry.

25

COMMISSIONER: I mean, I won’t – yes. I won’t understand your use of “balance

of probabilities” as a lawyer might use it, but I am interested in this notion of un-

excluded possibilities that you consider realistic. What Mr Beasley has been asking

you about, if I may phrase it this way, throughout your dealing with COVID, you’ve

understood that an un-excluded possibility is that you could be infected with it, a 30

person could be infected with it, who had never displayed fever among their signs or

symptoms; is that correct?

DR TOBIN: Yes.

35

COMMISSIONER: And that that was a real possibility of epidemiological concern?

MR BEASLEY: Clinical.

COMMISSIONER: Of epidemiological concern - - - 40

MR BEASLEY: Sorry. Yes.

COMMISSIONER: - - - that is, in terms of understanding the potential spread of the

disease, there was a real, if un-quantitated, presence of non-feverish cases; is that 45

right?


MR BEASLEY SC

DR TOBIN: Yes, yes.

COMMISSIONER: Thank you. I’ve read your statement and the materials you’ve

referred to. I’ve not got the impression that you didn’t care about that possibility

because it was understood to be quantitatively smaller than feverish cases; am I 5

right? As I read your material - - -

DR TOBIN: Yes. Sorry.

COMMISSIONER: - - - which, with respect, bespeaks care, you have not regarded 10

it as unimportant and too small for you to concern yourself with non-feverish cases.

DR TOBIN: No, no. It certainly continues to have - - -

COMMISSIONER: All right. What Mr Beasley has been asking you about, what 15

I’m interested in, in this particular area, is how the approach that he’s asking you

about set out to deal with those cases which clinically didn’t include fever, but were

understood to include a real, if un-quantitated, proportion of cases that could well be

infected with this new virus? That’s what Mr Beasley is asking you to concentrate

on. Why would you leave out that clinical presentation of no fever from the clinical 20

presentations that you were considering for preventive procedures?

DR TOBIN: I think we did continue to have an interest in all acute respiratory

infections and that I think that is shown.

25

COMMISSIONER: Well – but not in relation to outbreak?

DR TOBIN: Not as defined here.

COMMISSIONER: Well, that seems a bit of a pity, doesn’t it? 30

DR TOBIN: I think these were internal guidance for us and - - -

COMMISSIONER: Internal guidance for those who would then seek to safeguard

against the disease coming into Australia? 35

DR TOBIN: Making that risk assessment and - - -

COMMISSIONER: Yes.

40

DR TOBIN: - - - taking responsibility.

COMMISSIONER: What Mr Beasley is asking you is why would you leave out the

clinical presentation for screening or preventive purposes that involve no fever?

45


MR BEASLEY SC

DR TOBIN: Well, I think in the procedures that we ultimately used, that was

retained and we certainly did consider the rate of acute respiratory infections overall

and also focused in on that subset that was influenza-like illness.

COMMISSIONER: You will be going to whether - - - 5

MR BEASLEY: Yes, yes, yes. Just on the – we will discuss that when we get to it,

but just on this particular draft of the screening procedure, and this picks up some of

the questions the Commissioner was asking for clarification about, the use of the

notions of risk and balance of probabilities, you will see on page 2 of this draft that I 10

was taking your attention to the words “where a respiratory outbreak” with that

footnote is recorded and then there’s several scenarios, two of which relate to – more

to epidemiological criteria and the other being other features of concern, such as

where one or more cases as severe respiratory illness or whether majority of ARI

cases have tested negative for influenza, it then drops down and suggests this in the 15

third bullet point:

If the Chief Human Biosecurity Officer assesses there is a reasonable risk that

COVID-19 may be circulating on the ship –

20

now, that’s directed to an assessment to be made by you. What did you understand

to be the meaning of a “reasonable risk”? What’s a “reasonable risk” in those

circumstances?

DR TOBIN: If - - - 25

MR BEASLEY: We know it’s not balance of probability - - -

DR TOBIN: No. No.

30

MR BEASLEY: - - - because we’ve clarified that.

DR TOBIN: No.

MR BEASLEY: So it’s something less than that. 35

DR TOBIN: Yes. It’s difficult to clearly define. And I think - - -

MR BEASLEY: It’s not a gut feel, though.

40

DR TOBIN: No. No. And certainly, we had guiding criteria to guide our risk

assessment. And – but it was - - -

MR BEASLEY: Now, I want to be really fair to you.

45

DR TOBIN: Sure.


MR BEASLEY SC

MR BEASLEY: That there’s a document produced the next day that has that

criteria, high-risk, medium-risk, low-risk, which I will come to. Leaving – putting

that out of your mind, though, did “reasonable risk” mean anything in particular to

you in this 18 February draft?

5

COMMISSIONER: Doctor - - -

DR TOBIN: Sorry.

COMMISSIONER: - - - I’m not surprised you find that hard. It wouldn’t, your 10

answer couldn’t possibly involve numbers, could it?

DR TOBIN: No. I think, it was more nuanced.

COMMISSIONER: And neither is it, what I will call an “uniformed intuition” is it? 15

DR TOBIN: No. I don’t think.

COMMISSIONER: This is – as you keep saying and, if I may say so, appropriately,

this is a matter of risk assessment. But that’s a very shorthand way of saying “risk 20

assessment in light of the outcomes and the cost or trouble of dealing with the risk”.

Is that right? It’s all a question of balance and trade off, is that right?

DR TOBIN: Yes. I – think, that is an important factor to think about all the other

things that we were doing at that time, in New South Wales. And there was a 25

balance of resources available.

COMMISSIONER: What – what I am about to suggest to you and this is,

absolutely, not a criticism is that one might understand from your approach that you

have written, by “reasonable risk” some might say that actually means “unreasonable 30

risk” that means the same thing. That is, it’s a risk that it’s not reasonable to run

without taking some steps to counter it. Is that correct? That is - - -

DR TOBIN: I’m sorry - - -

35

COMMISSIONER: - - - reasonableness, as a standard, would have you do

something about what you perceived to be this risk.

DR TOBIN: Yes. Yes.

40

COMMISSIONER: Is that correct?

DR TOBIN: Yes. To take action. Yes.

COMMISSIONER: So a reasonable risk means, not one that it’s appropriate to do 45

nothing about but, rather, one that reasonableness – a combination of intelligence and

decency, would lead you to do something about. Is that right?


MR BEASLEY SC

DR TOBIN: Yes.

COMMISSIONER: Does that capture your approach?

DR TOBIN: I think so. 5


MR BEASLEY: Can you help me with one other aspect of this draft screening

procedure? You will see it – if you turn the pages, you will see, you will eventually 10

come to a draft pre-arrival risk assessment form, which I think, was a form circulated

from the risk assessment panel for the purposes of assisting you make your

determinations of risk.

DR TOBIN: Yes. 15

COMMISSIONER: I’m sorry, Mr Beasley, I’ve got a multiplicity of marked-up

copies. Which tab version?

MR BEASLEY: So if we’re in – you should be in tab 16, Commissioner. 20

COMMISSIONER: Thank you. No. Thank you. Thank you.

MR BEASLEY: And you will find - - -

25

COMMISSIONER: That’s all right.

MR BEASLEY: Yes. You’ve got it?

COMMISSIONER: I’ve been using tab 20 - - - 30

MR BEASLEY: So we’ve got draft, yes - - -

COMMISSIONER: - - - because that’s the butterfly, isn’t it? We’re still in the

chrysalis, I think. 35

MR BEASLEY: Draft 5 pm, 18 February 2020 - - -


40

MR BEASLEY: - - - pre-arrival risk assessment form.


MR BEASLEY: And this is substantially the same as what becomes the final risk 45

assessment form. It’s asking the ship to advise New South Wales Health about

whether passengers have been actively asked to report respiratory symptoms, have


MR BEASLEY SC

they been charged? The number of passengers and crew presenting with acute

respiratory illness, the percentage who have an influenza-like illness, etcetera. What

I didn’t quite understand and I wonder if you could help me with this, in the last

page, in the second last box, there is this question or proposition, I’m not quite sure

what it is: 5

Can passengers and crew disembark because contact details are readily

available?

I understand that part. But then it’s got: 10

And symptomatic people can on-travel safely home with a mask, fact sheet and

hand rub before results are known?

Now, I know there’s a question mark there. But was it your understanding that with 15

symptomatic people, assuming they’re symptomatic with COVID-19, they could

travel safely home, merely by being given a mask?

COMMISSIONER: And a fact sheet and hand rub.

20

MR BEASLEY: Well, I’m not even taking that seriously, but - - -

DR TOBIN: So I think - - -

MR BEASLEY: - - - was it ever your understanding that people symptomatic and 25

let’s assume here, we are talking about people that are symptomatic with this disease,

could travel safely home with a mask?

DR TOBIN: Well, I think, it was qualified by what assessment had been made.

And so - - - 30

COMMISSIONER: This is pre-test results?

DR TOBIN: Pre-test results.

35

COMMISSIONER: So swabs taken for COVID testing and before the results are

known. That’s what Mr Beasley is drawing to your attention. See the last words:

Before the results are known.

40

DR TOBIN: Right.

COMMISSIONER: That’s results of tests - - -

DR TOBIN: Yes. 45

COMMISSIONER: - - - from swabs taken from them for COVID, isn’t it?


MR BEASLEY SC

DR TOBIN: Yes. But, I suppose, in the scenario of a low-risk setting where we

don’t suspect that it’s likely to be onboard.

COMMISSIONER: Well, that comes back - - -

5

MR BEASLEY: No. No. No. My – yes - - -

COMMISSIONER: - - - to this problem of “likely” doesn’t it?

MR BEASLEY: Let’s take it step by step - - - 10

DR TOBIN: Sure.

MR BEASLEY: - - - Doctor, you, it can’t be the case that if someone, well, you tell

me if I’m wrong, but someone who is symptomatic with this disease make that 15

assumption, they have COVID-19 and they are symptomatic, they cannot travel

safely home with a mask, correct? They cannot?

DR TOBIN: No. I think, that would - - -

20

MR BEASLEY: That would be a risk that Public Health wouldn’t want to run,

correct?

DR TOBIN: Yes. I think, that would be in our medium or high-risk setting.

25

MR BEASLEY: Forget your “medium or high-risk settings”. What I am merely

putting to you is this, assume a person has COVID-19 and they are symptomatic. In

those circumstances, and you know that, you would not advise that it is safe from a

public health perspective that they could travel safely at home by being given a mask

- - - 30

MS FURNESS: Well, I object, Commissioner. That is not what is set out in this

document at all.

MR BEASLEY: I am not asking about – I am asking, I’ve made it clear, I think, 35

what assumptions I’d like made. First of all, I want you to assume that this person

has COVID-19. You know that. And they’re symptomatic.

COMMISSIONER: When you say, “you know that” you mean, “you have to

assume it because you don’t know”? 40

MR BEASLEY: Precisely.

MS FURNESS: Well, that’s not the question - - -

45

MR BEASLEY: All right. I will rephrase it.


MR BEASLEY SC

MS FURNESS: That’s not the question asked.

MR BEASLEY: I will rephrase it. We’ve got a symptomatic person, they might

have COVID-19, we don’t know. All right.

5

COMMISSIONER: And you’ve tested for it.

MR BEASLEY: It’s been tested, but the test results aren’t in. From a public health

perspective, it is not safe, is it, for that person to be able to travel home whether it’s

by Uber, taxi, plane, train, bus, just by being given a mask. That doesn’t make it a 10

safe travel, does it?

MS FURNESS: I object. I object.

MR BEASLEY: Well, so what’s the objection? 15

MS FURNESS: Well, the objection is that it’s inherent in the way in which the

question is asked that it’s an outrageous proposition that the person would be

permitted to do so. People are permitted to do so every day when they get tested

today. Every day. They get tested, they’re permitted to go home by whatever means 20

are available to them and stay in isolation until the test results are known.

COMMISSIONER: I understand that.

MR BEASLEY: And I don’t care – I don’t care a hoot about that. 25

COMMISSIONER: I understand that.

MR BEASLEY: I’m asking about this.

30

COMMISSIONER: Yes. We’re talking about release of passengers from a cruise

ship, Doctor. It’s – as we speak today, people who have been – people from the

community who have been tested, are not put into forcible quarantine by reason of

having been tested. Is that right?

35

DR TOBIN: Well, I think, they are recommended to self-isolate until they have a

result.

COMMISSIONER: Quite. Not forcible quarantine. Is that right?

40

DR TOBIN: Yes.

COMMISSIONER: Yes. Very well. Now, we’re talking about the release on mass

by the grant of pratique of passengers and crew disembarking. That’s what Mr

Beasley is asking you about, which is a bit different from individuals being tested in 45

the community. Do you understand? By numbers alone.


MR BEASLEY SC

DR TOBIN: I’m sorry. I’m not sure if I can make that distinction. I think, it would

be a similar scenario. And I think, if we had a high-risk that the person being tested,

a high suspicion that they had COVID-19 we would be very careful about how they

were managed to go into quarantine. But if the – well, the pre-test probability or the

likelihood was very low, the – I think, it’s quite plausible to imagine that they could 5

go home safely with appropriate personal protective equipment.

MR BEASLEY: It’s a risk worth running. Is that what you mean?

DR TOBIN: I just – if we had assessed someone of being a particularly low risk. 10

COMMISSIONER: What do you actually mean by assessing an individual as low

risk? Somebody who has been tested and is, as Mr Beasley has asked you,

symptomatic. What does it mean to assess them as low risk? You’re waiting for the

virology to come back. They have the symptoms that fit a clinical pattern. We 15

know, statistically, that most people with those symptoms don’t have COVID, so it’s

not balance of probabilities. What does it mean to call them low risk?

DR TOBIN: I think he, in this setting, would be someone who – where there is no

epidemiological link to increase their risk and they have been exposed and the 20

symptoms they have would be related to being exposed to someone with COVID-19.

COMMISSIONER: I think, I would like to hear your answer to Mr Beasley’s

question, please.

25

MS FURNESS: Perhaps he might put it again, Commissioner.

COMMISSIONER: Yes.

DR TOBIN: Sorry. 30

COMMISSIONER: You haven’t got the form, no doubt.

MR BEASLEY: I haven’t forgotten, it’s all right.

35

COMMISSIONER: No.

MR BEASLEY: Just a dramatic pause.

COMMISSIONER: Feel free to reframe. I’m not suggesting you should. 40

MR BEASLEY: I will go back to the document because in my head, I had moved

on. But what - - -

COMMISSIONER: Well, I still don’t know what the answer is. 45


MR BEASLEY SC

MR BEASLEY: - - - what I was putting to you is this, with – asking you, as a

public health expert that in circumstances where there is a symptomatic person for

COVID-19, we don’t have confirmation one way or the other whether this person has

the disease, because the test results aren’t in. From a public health perspective, what

I’m suggesting to you is that you wouldn’t view it that they could travel safely at 5

home by being given a mask. Do you agree with that or not?

DR TOBIN: I think, if COVID-19 is suspected, they possibly could. But we would

prefer them – we would prefer to manage that process.

10

COMMISSIONER: Part of “safely” is dealing with what’s not known, isn’t it?

Because you don’t know, it’s not safe to hope for the best. Isn’t that a proper public

health approach.

DR TOBIN: Well, certainly to – we like to apply what we call a “precautionary 15

approach”.

COMMISSIONER: Yes.

DR TOBIN: But we can’t always provide an absolute - - - 20

COMMISSIONER: No.

DR TOBIN: - - - estimation of risk.

25

COMMISSIONER: You may take it for granted that I will not be finding that life

has any absolute guarantees. It’s the word “safely” that Mr Beasley’s focusing on

and that I’m interested in. I’m finding it a bit challenging to understand why the

word “safely” would be used. Perhaps, if a more confronting phrase had been put in:

30

At an acceptable risk to the community

I could understand this statement. Then, attention would no doubt be brought to bear

on the judgement of the person or persons who regarded it as acceptable. Do you

understand? Do you understand my concern? 35

DR TOBIN: Yes.

COMMISSIONER: Yes.

40

DR TOBIN: It’s how we interpret, interpret “safely” - - -

COMMISSIONER: Is there anything else you want to say in answer to Mr

Beasley’s questions? I really, am interested to know, what you think?

45


MR BEASLEY SC

DR TOBIN: Again, it – it’s difficult to know how to rephrase it to make it clearer.

But, I don’t think, you can base this on clinical symptoms alone. You have to take

into consideration other information.

COMMISSIONER: And that, in particular, includes travel and contact history. Is 5

that right?

DR TOBIN: Yes.

COMMISSIONER: By reference to this 14 day margin of safety incubation period, 10

is that right?

DR TOBIN: Yes. And, I think, that’s what is intended in the case definition that

CDNA puts out, is to combine those – two things.

15

COMMISSIONER: Tell me – I want to be careful not to apply hindsight

inappropriately. And if you think I am, I invite you to tell me. But I want to invite

you to use all the hindsight you now have. Do you know of any cases, secondary

from Ruby Princess, that is people not passengers or crew but who have later

developed the infection where tracing produces the inference that the infection was 20

transmitted from somebody who did not have any of the epidemiological criteria for

a suspect case and were symptomatic when they were released from the ship? Do

you know?

DR TOBIN: Well, I think, with the updated case definition that was relevant at that 25

time, really, everyone had epidemiological criteria because they were all

international travellers. But, certainly, there were - - -

COMMISSIONER: All right. Well, if we go back to what you understood to be an

earlier understanding of international travel, which would restrict it to, what, China, 30

Thailand – where else – Iran, Korea. Yes.

DR TOBIN: There were high risk - - -

COMMISSIONER: But not New Zealand. 35

DR TOBIN: High risk – not New Zealand. High risk countries and medium risk

countries.

COMMISSIONER: All right. So confining yourself to that understanding back in 40

history of epidemiological criteria, are you aware of any cases thought to have been

transmitted from passengers or crew of Ruby Princess that lacked fulfilment of those

epidemiological criteria?

DR TOBIN: Yes. 45


MR BEASLEY SC

COMMISSIONER: And what about persons thought to have been infected by

transmission from passengers of Ruby Princess who were asymptomatic upon

disembarkation? Are you aware of that having been inferred since disembarkation?

DR TOBIN: Yes. 5

COMMISSIONER: So there’s really no doubt of current – that is, today, state of art

– accepts `that there is biological reality, doing the best we can in these early stages,

biological reality to asymptomatic infection later, with or without symptoms, leading

to transmission to other persons from a class that lacked fulfilment of the 10

epidemiological criteria as you understood them in mid-March; is that right?

DR TOBIN: ..... I’m not aware of – and I might not be fully across it – but I’m not

aware of any suspected transmission from passengers who didn’t develop symptoms

and who stayed asymptomatic, and that I understand that they’re certainly that - - - 15

COMMISSIONER: But presymptomatic?

DR TOBIN: - - - presymptomatic - - -

20


DR TOBIN: - - - I’m pretty sure that that’s happened. Yes.

COMMISSIONER: Thanks. So asymptomatic upon disembarkation? 25

DR TOBIN: Yes.

COMMISSIONER: Wouldn’t have been swabbed?

30

DR TOBIN: No.

COMMISSIONER: Wouldn’t they be regarded as people who can travel home very

safely?

35

DR TOBIN: Not very safely. And – but I think - - -

COMMISSIONER: Well, I’m sorry. I’m using the word “safely” because - - -

DR TOBIN: Certainly. Sorry. 40

COMMISSIONER: - - - that refers to symptomatic people travelling safely.

Asymptomatic people of the kind you’ve just described that we now know after the

event were the source of transmission.

45

DR TOBIN: Certainly.


MR BEASLEY SC

COMMISSIONER: Nobody would sensibly say they could have travelled very

safely, could we? Could – were they?

DR TOBIN: Well, I think we still – and we’re learning more all the time – but I

think we still are of the view that prior to symptoms developing it is possible to 5

transmit the infection, but that’s a rare occurrence. So for the - - -

COMMISSIONER: So do you mean an acceptable risk? From a cruise ship. Not

from the community, from a cruise ship.

10

DR TOBIN: I can only say that we considered that a low risk scenario for

transmission prior to them developing symptoms.

COMMISSIONER: Is that for biological reasons?

15

DR TOBIN: It’s from, I suppose, an epidemiological evidence, but also - - -

COMMISSIONER: I’m talking about biological reasons.

DR TOBIN: I think the production of symptoms is important in increasing the risk 20

of transmission, the coughing and sneezing produces the droplets that are more likely

to spread to other people. I think we’re still a little bit unsure about just how people

are transmitting the virus when they’re asymptomatic or – and so we accept that that

- - -

25

COMMISSIONER: Hence the relevance of something like viral load; is that right?

DR TOBIN: Yes, yes. And but, clearly - - -

COMMISSIONER: The point is these were all – these were all unknown matters of 30

biology then and still now, aren’t they?

DR TOBIN: Still unclear, I think. Yes.

COMMISSIONER: So the precautionary approach; does that become relevant 35

when there are unknowns of that kind?

DR TOBIN: I think that’s part of the risk assessment that you take. Yes.

MR BEASLEY: Tab 18, Dr Tobin, this is the COVID-19 assessment procedure. It 40

says “draft”, but there seems to be – Draft, 11 am, 19 February 2020 – there seems to

be a general consensus that it was still, whilst not a straightjacket, still the relevant

procedure for assessment through March - - -

DR TOBIN: Yes. 45


MR BEASLEY SC

MR BEASLEY: - - - although the screening process evolved. Can I just get your

assistance with this document. I’m going to come back to this document in detail,

Commissioner. I just want to ask a couple of preliminary questions and then move

on until we actually get to the Ruby Princess risk assessment, but - - -

5

COMMISSIONER: Is 18 the same as 20?

MR BEASLEY: I think it is. Yes.


MR BEASLEY: I believe it is.


15

MR BEASLEY: Yes, it is. It’s still the 11 am, 19 February draft. So it’s in two

places. I’m, for my purposes, I’m using tab 18. I don’t think it matters.


20

MR BEASLEY: You will see that this document lists out a series of existing

measures that are Commonwealth measures and mentions the MARS system. It then

has this heading Enhanced Measures, which are what New South Wales Health was

introducing:

25

All cruise ships will be assessed by the chief human biosecurity officer.

And then it lists two criteria on the first page. The first bullet point is mentioning the

epidemiological criteria we’ve been discussing, such as whether you’ve been

travelling in a high-risk area, etcetera. The bullet point for the – the next bullet point, 30

though, relating to clinical criteria is:

Undiagnosed respiratory illness amongst passengers or crew that is clinically

compatible with COVID-19.

35

Again, drawing in this larger group than merely ILI, but people that have the clinical

criteria of CDNA criteria for COVID-19, that is, respiratory illness with or without a

fever; correct?

DR TOBIN: Yes. 40

MR BEASLEY: All right. Again, in the rest of this document, it separates that

there are – sorry – identifies that there are two groups of passengers or crew that are

important for assessment: those with respiratory symptoms and/or fever must be

isolated. It again uses the term “respiratory outbreak”, and I assume, consistent with 45

your previous evidence, that when you considered this document, wherever it refers


MR BEASLEY SC

to “respiratory outbreak”, you had in mind ILI, not the broader acute respiratory

disease with or without a fever.

DR TOBIN: Yes.

5

MR BEASLEY: And then it specifies these three categories of risk assessment:

high risk, medium risk and low risk. And this was a document you were obviously

familiar with; correct?

DR TOBIN: Yes. 10

MR BEASLEY: Was it a document you yourself had had any input into in terms of

drafting the risk assessments for high risk, medium risk and low risk? Do you recall

that? Take your time if you need to consult your statement.

15

DR TOBIN: Sorry.

MR BEASLEY: I myself didn’t pick up that you had a particular role in drafting

this document, but you may have. Do you recall?

20

DR TOBIN: I don’t recall - - -


DR TOBIN: - - - providing particular suggestions. 25

MR BEASLEY: Consistently with the screening procedure, though, we have this

understanding, you have, that “respiratory outbreak” relates to ILI, but, in terms of

the rest of the document, the interest is in the group of passengers and crew that have

either fever or an acute respiratory illness with or without a fever; correct? 30

DR TOBIN: Sorry. Can you say that again?

MR BEASLEY: Well, you’ve already told the Commissioner that where the term

used “respiratory outbreak affecting at least one per cent of those on board”, you had 35

in mind influenza-like illness as being what that was referring to.

DR TOBIN: Mmm.

MR BEASLEY: What I’ve just directed your attention to, apart from the document 40

asking the ship to ensure that people, even without a fever, if they’ve got respiratory

symptoms, must be isolated, you want to be advised by the ship, for example, about

anyone who’s been to the medical clinic with fever and/or acute respiratory illness;

correct?

45

DR TOBIN: Yes.


MR BEASLEY SC

MR BEASLEY: All right. Commissioner, I have - - -

COMMISSIONER: Just before we look at – there’s a reference to updating details

on the ship’s ARD log.

5

MR BEASLEY: Yes.

COMMISSIONER: Do you see that? Do you see that?

MS FURNESS: Pre-arrival Respiratory Illness Screening. 10

COMMISSIONER: Under the heading Pre-arrival Respiratory Illness Screening,

the fifth hollow dot point. Do you see that, Doctor?

DR TOBIN: Yes. 15

COMMISSIONER: That’s not limited to ILI, is it?

DR TOBIN: No, no.

20

COMMISSIONER: And the first line of that section of the document, commencing

“Where passengers or crew”, that expression “respiratory illness” is not limited to

ILI, is it?

DR TOBIN: No. 25

COMMISSIONER: Nor in the second of the hollow dot points:

Assessing patients with respiratory illness.

30

That’s not limited to ILI, is it?

DR TOBIN: Sorry. I’m not quite sure where we are.

COMMISSIONER: Sorry? 35

DR TOBIN: In the pre-arrival respiratory illness screening?

COMMISSIONER: Still in the same section:

40

Wear appropriate PPE while assessing patients - - -

DR TOBIN: I’m sorry.

COMMISSIONER: 45

- - - patients with respiratory illness and collecting specimens.


MR BEASLEY SC

That’s not limited to ILI, is it?

DR TOBIN: No, no.

COMMISSIONER: And the swabs would be collected – two swabs from each 5

patient – that would be whether they were presenting with ILI or the more general

ARI; is that right?

DR TOBIN: Well, I think it would be up to the clinician to decide whether they - - -

10

COMMISSIONER: What, a ship’s doctor? A ship’s doctor.

DR TOBIN: Ship – sorry. So a ship’s doctor to decide whether they’re required

and were suspected - - -

15

COMMISSIONER: Required what?

DR TOBIN: Suspected influenza. So if they were concerns that this might be

influenza, we recommended that they also take a swab for a COVID-19 test.

20

COMMISSIONER: Knowingly, therefore, not swabbing for COVID-19 in non-ILI

cases?

DR TOBIN: Where - - -

25

COMMISSIONER: When I say “knowingly”, you and your colleagues, I think, on

the 16th of February, you had indicated you were content with this – the form that

was then evolving; is that right?

DR TOBIN: Yes. 30

COMMISSIONER: And – well, I understand you’ve just given us the swab for

COVID would only be taken if they’re being considered medical reasons – clinical

reasons – to take a swab for influenza; is that right?

35

DR TOBIN: Yes. I suppose the point I was making I’ve reasonably assumed that

anyone presenting with ILI would be tested for influenza.

COMMISSIONER: Yes.

40

DR TOBIN: But does leave open the option for the ship’s doctor to test for

influenza and other situations as well.

COMMISSIONER: No. I understand that. I’m asking does that not involve

knowingly restricting the expected supply of swabs to test for COVID to patients 45

who clinically justified swabs for influenza?


MR BEASLEY SC

DR TOBIN: Yes.

COMMISSIONER: And that is a subset of the ARI clinical indications consistent

with or compatible with eventual COVID, isn’t it?

5


COMMISSIONER: When you say, “Possibly, yes,” at that time, the state of art - - -

DR TOBIN: Sorry. Yes. 10

COMMISSIONER: - - - was that you didn’t need fever to have COVID; isn’t that

right?

DR TOBIN: Yes. 15

COMMISSIONER: That was the understanding.

DR TOBIN: Yes.

20

COMMISSIONER: Nothing has to be certain, because you are in a precautionary

universe; isn’t that right?

DR TOBIN: Yes.

25

COMMISSIONER: So doesn’t it follow that this is a suggestion that was

knowingly not testing for part of the class of clinical presentation consistent with

COVID, namely, ARI without fever?

DR TOBIN: Yes. I think, ultimately, it’s a decision of the ship’s doctor, whether 30

they test or not - - -

COMMISSIONER: But that decision would be as to whether they – the person

seemed to be presenting with the possibility of flu; is that right?

35

DR TOBIN: Suspected flu, yes.

COMMISSIONER: Where one of the key or cardinal indicators would be fever,

wouldn’t it?

40

DR TOBIN: Yes.

COMMISSIONER: Along with other symptoms that may be consistent with more

generalised ARI in the absence of fever; is that right?

45

DR TOBIN: Constitutional symptoms, yes.


MR BEASLEY SC

COMMISSIONER: As a screening protocol, it would appear then designed not to

get swabs from people without fever, wouldn’t it? Though they had ARI, if they

didn’t have fever, probably, the ship’s doctor wouldn’t have taken a swab for flu and,

therefore, they wouldn’t have taken the second swab for COVID?

5

DR TOBIN: Yes.

COMMISSIONER: And that seems to be calculated or built into this design aspect

of the protocol, it seems to me.

10

DR TOBIN: Yes.

COMMISSIONER: And, no doubt, for me, it’s all the benefit of hindsight, that alas

is what my letters patent require. Looking back on it, I’m asking you to comment on

this suggestion that that appears to be a defect of design in the protocol. What do 15

you say to that?

DR TOBIN: I suppose it goes back to our understanding of – our advice about

testing more broadly in the community at that time, which was focused on - - -

20

COMMISSIONER: Was it restricted to ILI?

DR TOBIN: No. But people with symptoms, certainly, could be milder symptoms.

COMMISSIONER: It wasn’t restricted to ILI was it? 25

DR TOBIN: No. No.

COMMISSIONER: No.

30

DR TOBIN: But it had that epidemiological side, too. So certainly, if there was a

passenger that had come from one of those high-risk countries and had minor

respiratory illness, we would hope that they would be tested, as well. Sample swabs

to collect.

35

MR BEASLEY: Commissioner, I have a number of other questions about this

particular document. But could I suggest, it might be more convenient for those

questions to be asked when we actually get to the risk of assessment for the Ruby

Princess?

40

COMMISSIONER: Yes.

MR BEASLEY: So I will just - - -


MR BEASLEY: - - - temporarily, move on from it.


MR BEASLEY SC

COMMISSIONER: Yes. Thank you for doing that.

MR BEASLEY: Can I ask you to consider and give us your views and assistance,

Dr Tobin, with this document, the final version. I will just – I will rephrase that.

The version that was of the screening procedure or enhanced COVID-19 procedures 5

for the cruise line industry that was sent by Dr Chant on 22 February to the cruise

ship industry. You will find that behind tab 23. Tell me when you get there. First of

all, you will see a letter from Dr Chant to:

Dear cruise ship industry representatives 22.2.20 10

DR TOBIN: Yes.

MR BEASLEY: And over the page, you will see what’s described as, well, sorry,

titled as: 15

Enhanced COVID-19 procedures for the cruise line industry.

I would just like your assistance with these things. Again, you will see the heading:

20

Procedures to identify and manage cases of respiratory infection.

And the first bullet point, we are talking, we are going back on this theme of asking

the cruise ship staff to ensure that there’s an identification of passengers with

respiratory symptoms which include people with respiratory symptoms that may 25

have fever or may not have fever. Correct?

DR TOBIN: Yes.

MR BEASLEY: And then, it’s got the second bullet point. And I ask for your help 30

with this. Passengers:

who may be infectious

What did that mean to you? 35

DR TOBIN: So under the judgements of the ship’s doctor and people who were

suffering from an illness that was believed to be infectious of nature. And here,

we’re particularly talking about respiratory infections.

40

MR BEASLEY: Yes.

DR TOBIN: But conceivably, other infections of concern, too.

MR BEASLEY: Yes. And consistent with the other – how this is being 45

approached, that includes, in terms of infectious – people “who may be infectious”

includes people that may have a fever but they may not have a fever, correct?


MR BEASLEY SC

DR TOBIN: Yes.

MR BEASLEY: Yes. Then, in terms of what New South Wales Health is requiring

from cruise ships, at least 24 hours before arrival at a port, you are seeking a copy of

the full Acute Respiratory Diseases Log, including patients with fever or acute 5

respiratory illness. So we want that. Again, though, when we get to the bullet point

dealing with:

Respiratory outbreak

10

And the footnote:

A respiratory outbreak defined as greater than 1 per cent of people on board

affected.

15

You considered that to be a reference to ILI not the broader group of people with

acute respiratory illness that didn’t have a fever?

DR TOBIN: Yes.

20

MR BEASLEY: All right. Pre-arrival preparations for health screening. If a health

team was to conduct a screening, now, that only happens with a medium risk

assessment or a high risk assessment, correct?

DR TOBIN: Yes. 25

MR BEASLEY: All right. So if there’s – and that, in fact, happened with the Ruby

Princess when it came in on 8 March, correct?

DR TOBIN: Yes. 30

MR BEASLEY: I don’t think you were on the assessment panel for that, were you?

MS FURNESS: Yes.

35

MR BEASLEY: For the 8th?

DR TOBIN: A panel, yes.

MR BEASLEY: Well, you were or what – you - - - 40

DR TOBIN: Not – not part of the team. Sorry. Yes.

MR BEASLEY: Sorry. I had people in each ear, including my deaf ear, then.

45

DR TOBIN: Sorry.


MR BEASLEY SC

MR BEASLEY: I didn’t think you – I beg your pardon, you were a member of

both. What you’re asking the ship to do if a health team is going on board is you’re

not restricting the assessment to people with ILI, but it’s anyone who is feeling sick

with respiratory symptoms or fever?

5

DR TOBIN: Yes.

MR BEASLEY: So in terms of the health assessment on board, you’re interested in

people that have either a respiratory symptom with a fever or respiratory symptoms

without a fever, correct? 10

DR TOBIN: Yes.

MR BEASLEY: That gets back to what I described as my confusion as to why you

were – given that if a New South Wales Health team goes on board, it wants to see 15

people with respiratory symptoms, even if they don’t have a fever, why is

“respiratory outbreak” in those circumstances, narrowed to this group that must have

a fever?

DR TOBIN: Well, I think, we’re using the respiratory outbreak as one of our 20

criteria for doing the risk assessment. And - - -

COMMISSIONER: I think, what Mr Beasley is asking you is, “How could you read

“respiratory outbreak” as, without words to say so, restricted to the subset of ILI?”

Just in this document, which might be read by people other than those who wrote it? 25

MR BEASLEY: In terms of the English language, it doesn’t use the term “ILI

outbreak” we can agree on that. It says - - -

DR TOBIN: Yes. 30

MR BEASLEY: “Respiratory outbreak” so you’re saying, “Well, even though it

uses the term “respiratory outbreak” and even though, in all other relevant parts of

the document where there is some importance placed on respiratory symptoms it

doesn’t distinguish or doesn’t exclude that group of people that has respiratory 35

symptoms without a fever. What I’m really getting at is that it was, obviously,

considered important enough from a risk assessment perspective, if New South

Wales Health boarded a ship, to assess all those people who were feeling sick with

respiratory symptoms, whether or not they had a fever. That was an important

consideration for the risk assessment, if you went on board the ship. “We want to 40

see all these people with respiratory symptoms, even if they don’t have a fever

because we’re – that’s important for our risk assessment.” Why, then, getting back

to this point – why, then, when you are assessing a risk assessment when you’re not

on the ship, why do you place more weight, at least, and significantly more weight, if

I may say so, on that group of passengers that have an ILI, rather than the broader 45

group?


MR BEASLEY SC

DR TOBIN: In the setting where the health team was going to do a dockside

assessment, that pre-arrival risk assessment has already been done.

MR BEASLEY: Yes.

5

DR TOBIN: And so we have already classified them as medium or, even, high risk,

though, we haven’t had any of those. So at that point, we have a high degree of

suspicion that COVID-19 is onboard. And we recognise that COVID might present

with a milder symptom. So we have a – set the threshold lower for detecting cases.

So we’re looking for respiratory symptoms with or without fever. 10

MR BEASLEY: So if you suspect – have a higher level of suspicion that COVID-

19 is on board a ship, it’s at that point that you want to assess or place greater

consideration on to the broader group of people who have respiratory symptoms but

don’t have a fever. 15

DR TOBIN: Yes.


20

COMMISSIONER: Doctor, if – am I right that, in this document, every reference to

“pre-arrival screening” and post arrival, that is post disembarkation “public health

concern” includes both febrile and afebrile ARI? That’s right?

DR TOBIN: Yes. 25

COMMISSIONER: The only reference to – that I can find – to ILI as a potential

smaller class of interest is in the section that describes the criteria for risk assessment

high risk. Could you just look at that for me?

30

DR TOBIN: Sorry.

COMMISSIONER: It’s over the page. The heading is:

Risk assessment high risk. 35

Do you see that?

DR TOBIN: Sorry, that - - -

40

MS FURNESS: That’s not the right document. Did you mean 22 February

document?

COMMISSIONER: Sorry. 22 February, yes.

45

MS FURNESS: Yes.


MR BEASLEY SC

COMMISSIONER: Could you go back to 19 February, please. Tab 20, I want to

take you to.

DR TOBIN: 20. All right.

5

COMMISSIONER: Thank you. In that document, do you see the description of:

Risk assessment high risk

DR TOBIN: Yes. 10

COMMISSIONER: In its first bold dot item, I’m inviting correction if I’m wrong

here. I think, that’s the only place where influenza seems to have some sort of role in

specifying a class of precautionary concern. Do you see that?

15

DR TOBIN: Yes.

COMMISSIONER: But the way it’s expressed, certainly, doesn’t limit respiratory

outbreak to influenza, ILI, does it?

20

DR TOBIN: No. I think, the point - - -

COMMISSIONER: It includes, doesn’t it – and that’s a class where positive

influenza is expected to be a sub-class, isn’t that right?

25

DR TOBIN: Well, I think, we’re talking about, so our understanding of the risk of

respiratory outbreak is influenza-like illness cases - - -

COMMISSIONER: No. That’s not my understanding, at all. Let me make it

crystal clear. 30

DR TOBIN: Sorry. Sorry. Our understanding - - -

COMMISSIONER: Well, you better speak for yourself here.

35

DR TOBIN: Sorry. Sorry.

COMMISSIONER: - - - your understanding.

DR TOBIN: My understanding. 40

COMMISSIONER: Yes.

DR TOBIN: And that of those ILI cases, if they – presumably, they would have

influenza testing done and if influenza was positive in a large number of those cases, 45

that might explain the outbreak. So - - -


MR BEASLEY SC

COMMISSIONER: Well, you say, “Might explain” that’s not what this document

says. It says, “is not explained”. That’s – that’s not very precise language in this

area of medical unknowns, is it?

DR TOBIN: It’s – I think, it’s difficult to be precise. It would be a manner of 5

judgement - - -

COMMISSIONER: Well, it’s because it’s difficult to be precise that you shouldn’t

say that, should you? There are such things as false positives and false positives, in

any event, aren’t there? 10

DR TOBIN: Yes. Yes.

COMMISSIONER: Of sufficient moment for that to be, routinely, discussed. Is

that right? 15

DR TOBIN: Yes. Yes.

COMMISSIONER: And in any event, comorbidity with COVID could not be

excluded as a real possibility, could it? 20

DR TOBIN: Coinfection.

COMMISSIONER: Coinfection.

25

DR TOBIN: Yes. Certainly - - -

COMMISSIONER: Which might become comorbidity.

DR TOBIN: Yes. I am sorry, I have a different interpretation of that term. 30

COMMISSIONER: You could be sick with both?

DR TOBIN: Yes. Yes. Certainly.

35

COMMISSIONER: That’s what comorbid means, doesn’t it? You can be infected

without illness, can’t you?

DR TOBIN: Yes.

40

COMMISSIONER: Can’t you?

DR TOBIN: Sorry – asymptomatic, asymptomatic, yes.

COMMISSIONER: You can be infected with COVID without getting sick, correct? 45

DR TOBIN: Yes. Yes.


MR BEASLEY SC

COMMISSIONER: So coinfection and comorbidity is understood – was, then,

understood to be possible between COVID-19 and influenza. Is that right?

DR TOBIN: Well, I was aware that there had been - - -

5

COMMISSIONER: Please. I need to get an answer - - -

DR TOBIN: Yes. Yes.

COMMISSIONER: Is that right? Yes. 10

DR TOBIN: Yes.

COMMISSIONER: Doesn’t that mean that testing positive for influenza could

never be said to explain, that is to exclude, COVID? 15

DR TOBIN: Not absolutely, no.

COMMISSIONER: I’m sorry?

20

DR TOBIN: No. No, it couldn’t.

COMMISSIONER: Well, we’re not – we’re not looking for anything absolute, are

we? We’re looking for possibilities about which a public health precautionary

approach would be sensible. Isn’t that right? 25

DR TOBIN: Yes. And so our understanding that coinfection could happen but that

it was a rare event. And we thought that it was - - -

COMMISSIONER: When you say “rare” there was simply no data to enable you to 30

do a statistical analysis at all, were there? It was thought not to occur very

frequently, so as to justify, properly, the word “rare”. But numbers were quite

unknown, isn’t that right?

DR TOBIN: Well, I think, that even at this time, there had been a lot of 35

epidemiological and clinical data assembled. And - - -

COMMISSIONER: I’ve not seen any reference to that in the documentation that

you and your colleagues drew on when you were working in mid-February on this.

To documentation that includes numbers - - - 40

DR TOBIN: No. No.

MR BEASLEY: This is using the rear-view mirror. But have you, since 19 March,

become aware that a number of the passengers of the Ruby Princess tested positive to 45

both influenza and COVID-19? Has that been brought to your attention?


MR BEASLEY SC

DR TOBIN: I wasn’t aware of that.

MR BEASLEY: No. Okay. Commissioner - - -

COMMISSIONER: Is that a convenient time. 5

MR BEASLEY: And please don’t think I’m saying you could have had a crystal

ball in relation to, at least, the Ruby Princess - - -

COMMISSIONER: Is that a convenient time? 10

MR BEASLEY: It is, yes.

COMMISSIONER: Yes. Thanks.

15

MR BEASLEY: Is 2 o’clock?

COMMISSIONER: What, as opposed to 1.45?

MR BEASLEY: Well, it’s not just my - - - 20

COMMISSIONER: All right. 2 o’clock - - -

MR BEASLEY: - - - convenience. There is a witness who might want to - - -

25

COMMISSIONER: 2 o’clock. 2 o’clock. Thank you.


30

ADJOURNED [1.02 pm]

RESUMED [2.00 pm]

35

COMMISSIONER: When you’re ready.

MR BEASLEY: Sorry, Commissioner. I’m ready when you’re ready, now,

Commissioner. 40

COMMISSIONER: I’m ready.

MR BEASLEY: Just before we started, obviously, I won’t be mentioning any

names, but Mr McLure wasn’t aware of a private hearing that’s proposed on either 45

Monday or Tuesday, so I’ve notified him. To the other interested parties that are


MR BEASLEY SC

here, I understand that they will be permitted to take part in the private hearing, but it

will be a private hearing subject to - - -

COMMISSIONER: Non-publication. Yes, yes.

5

MR BEASLEY: - - - non-publication orders. So - - -

MS FURNESS: Do I know about them?

MR BEASLEY: Pardon? 10

MS FURNESS: Do I know anything about them?

MR BEASLEY: You do, because you applied for it.

15

MS FURNESS: Well, I didn’t know how many non-publication – private hearings

there might be. We haven’t been advised as to the time.

MR BEASLEY: No, it’s the – the witness was summonsed, I think, from Monday

onwards. In terms of exactly when it will take place, there’s obviously Professor 20

Forssmann to give his evidence tomorrow and then there’s Dr Hess.

MS FURNESS: Dr Hess is before Professor Forssmann.

MR BEASLEY: Sorry. Professor - - - 25

MR McLURE: Ferson.

MR BEASLEY: - - - Ferson.

30

MS FURNESS: Ferson. Yes.

MR BEASLEY: Yes. And we don’t know about the other witness yet. And for the

witness for the private hearing, they would either be – that private hearing would be

listed immediately after Dr Hess or not. 35

MS FURNESS: That would be the point. I don’t think we have been provided with

the time.

MR BEASLEY: Yes. 40

MS FURNESS: And clearly there’s no time to be provided with. Thank you.

COMMISSIONER: That’s correct. But as soon as we know something, you will.

45

MR BEASLEY: Yes.


MR BEASLEY SC

MS FURNESS: Thank you.

MR BEASLEY: Doctor, could you turn to tab 26 in the bundle of documents,

Exhibit 29. I don’t want to spend a lot of time on this document, but there’s a draft

of it that I don’t quite understand how it got to its various iterations, and I’m 5

wondering if you can assist. This is a – the document I’ve asked you to look at in the

bundle is a document headed New South Wales Health COVID Cruise Ship

Response Procedure for Confirmed Cases. Obviously, there were no confirmed

cases on the Ruby Princess when people got off-board. But if you look at – if you go

to the third page, there’s a heading “Three Confirmed Case Scenarios”. This is 10

dealing with a protocol to be followed if a traveller has recently disembarked in

another port and has subsequently been confirmed as a COVID-19 case with likely

exposure of other travellers still on the ship. And then it sets out a protocol to be

followed in relation to what should be done in the circumstances that a confirmed

case, including other travellers still on board, with fever or respiratory symptoms 15

would be considered suspect cases. And just drawing to your attention there that, in

terms of being considered a suspect case, at least in this document on 26 February,

it’s respiratory symptoms with or without a fever; do you see that?

DR TOBIN: Yes. 20

MR BEASLEY: All right. And it sets out other matters to be followed should there

have been a confirmed case onboard a particular cruise ship. Now, we know there

was no confirmed cases on the Ruby Princess, when it – at the time it docked on the

19th of March. But can I show you a draft of this; a 24 February draft of this 25

particular procedure. I’ll just have a document shown to you, Dr Tobin. So you’ll

see there that’s a 24 February draft of the document that’s behind tab 26 in Exhibit

29. You will see, though, there’s a comment on the title - - -

COMMISSIONER: So this is a draft of the 24th of February? 30

MR BEASLEY: It’s a draft of 24 February 2020.

COMMISSIONER: Yes.

35

MR BEASLEY: Headed New South Wales Health COVID-19 Cruise Ship

Response Procedure for Confirmed Cases. Do you have that, Commissioner?

COMMISSIONER: I do. Thanks.

40

MR BEASLEY: All right. And you’ll see in the first comment box, it’s got “IH1” –

and I don’t know for certain, but I’m guessing that’s Dr Hess, Isabel Hess.


45

MR BEASLEY: I’m not asking you to – “TS” is not you; correct? Or is it?


MR BEASLEY SC

DR TOBIN: It certainly may – may be, I think.

MR BEASLEY: With the initials the other way around?

DR TOBIN: Yes. 5

MR BEASLEY: I see. Okay. Does that – I better ask you do you recall seeing this

document in various draft phases?

DR TOBIN: Yes. 10

MR BEASLEY: All right. And you think – well, let’s just have a look at the

comment for IH1, where it looks like Dr Hess is querying whether this should be

“suspected”.

15

COMMISSIONER: I’m sorry. I’m lost. Which page is this?

MR BEASLEY: First page.

COMMISSIONER: Sorry. Thank you. 20

MR BEASLEY: You got that comment at IH1?

COMMISSIONER: I do. Thanks.

25

MR BEASLEY: Comment at TS2, which you think is you, do you, Dr Tobin?

DR TOBIN: Yes.

MR BEASLEY: All right. Okay. And you – you say: 30

I meant this is just for confirmed cases. It should not cover scenarios that don’t

include confirmed cases. There is a separate document that talks about the

screening process.

35

Can I take you to page – do you have a number down the bottom of yours, 85, on the

third page?

DR TOBIN: Yes.

40

MR BEASLEY: Go to that page. What I’m wondering is this: you’ll see there are

a number of scenarios and, although this is headed Procedure for Confirmed Cases,

the first scenario deals with:

A possible case. 45

Not a confirmed case. Do you see that?


MR BEASLEY SC

DR TOBIN: Yes.

MR BEASLEY: And it says:

In this scenario, the cruise ship medical team have identified a possible case of 5

COVID-19 prior to arrival. This ship will be considered high risk as defined in

the Cruise Ship COVID-19 Assessment Procedure for Ports of First Entry into

Australia. Pre-collected specimens from the ship will be obtained for COVID-

19 testing before docking and a New South Wales Health team will be sent to

the vessel prior to disembarking to assess the situation. All passengers and 10

crew would remain on the ship until the test results of the unwell passengers is

received.

What I’m struggling is, is what happened to this? This seems to be a scenario where,

if a possible case of COVID is identified, which clinically, at least, would mean 15

anyone with an acute respiratory illness with or without fever, then no one gets off

the ship until test results are done. Can you explain what happened to that desired

procedure as at 24 February and how it was taken out of the document and we ended

up with the document behind tab 26?

20

DR TOBIN: As I recall, this was prepared by our staff within our PHEOC team and

I - - -

MR BEASLEY: When you say – you’ll have to tell me what that is, a PHEOC?

25

DR TOBIN: Sorry.

MR BEASLEY: A Public Health Team?

DR TOBIN: So the Public Health Emergency Operations Centre. 30

MR BEASLEY: Right. Okay. Thank you.

DR TOBIN: Sorry. And it was my understanding that, although they put a lot effort

into it, they had misunderstood their brief, if I can borrow your term. 35

MR BEASLEY: Right.

DR TOBIN: And that it should be – this procedure was restricted to what we would

do once we knew of a positive case. 40

COMMISSIONER: What? Do you mean, by virology?

DR TOBIN: Yes.

45

COMMISSIONER: By a test?


MR BEASLEY SC

DR TOBIN: Yes. Yes, a confirmed case.

MR BEASLEY: So - - -

COMMISSIONER: And that would happen – sorry – in this scenario – and that 5

would happen only after you’ve got a positive result back?

DR TOBIN: Yes.

COMMISSIONER: So it becomes important to know whether the horse has bolted, 10

in terms of all the passengers?

DR TOBIN: Yes, it – I suppose, depending on the particular scenario that you’re

informed, and it’s possible that you may be informed, as mentioned in scenario - - -

15

COMMISSIONER: The screening procedures contemplates that if something like

that happens, everyone will be notified, which is why contact details are important;

is that right?


COMMISSIONER: But this is trying to deal with things starting with confirmation

in a case and then asking what you do in the various permutations?

DR TOBIN: That’s right. And what - - - 25

COMMISSIONER: So this – what Beasley has asked you is just an error, is that

right?

DR TOBIN: I think so, yes. 30

COMMISSIONER: And the word “possible” in particular, is a bit of a problem,

isn’t it?

DR TOBIN: Yes. And I think, that all relates to our pre-arrival assessments. 35

COMMISSIONER: Thanks.

DR TOBIN: Rather than this, which is meant to be a response to known cases.

40


MR BEASLEY: The reason for me seeking your assistance clarifying is that, of

course, a possible case of COVID could technically, as I have said, clinically mean

that anyone on the ship that had an acute respiratory illness with or without a fever. 45

And yet, it proposes no one gets off the ship until that’s investigated to the point of


MR BEASLEY SC

swabs being tested. Which doesn’t seem consistent with the other protocols, the

other procedures.

DR TOBIN: I think, it was an earlier draft.

5

MR BEASLEY: Yes.

DR TOBIN: And then, I think, it was corrected. And that’s - - -

MR BEASLEY: All right. All right. Thank you. I know you were on the 10

assessment panel that assessed the Ruby Princess as a medium risk – ship on 7

March and when it berthed on 8 March, correct?

DR TOBIN: Yes.

15

MR BEASLEY: And the panel’s view was that the ship should be assessed as

medium risk even though it had an ILI rate of, I think, only about .4 per cent. But

primarily, because two passengers with acute respiratory disease onboard had been

travelling within 14 days to Singapore, correct?

20

DR TOBIN: Yes.

MR BEASLEY: That was the – that was the key concern that, in your mind and in

the other panellists’ minds, as far as you’re aware, tipped the ship out of the low-risk

category and put it into the medium risk category, meaning the assessment team went 25

on the ship?

DR TOBIN: That was, certainly, my thinking and, I believe, the other panellist, as

well.

30

MR BEASLEY: All right. Well, let’s just stick with you. What concerned you

most in relation to the ship coming into Sydney on 8 March in terms of the risk

assessment was, “Even though the ILI rate on the pre-arrival risk assessment form is

0.4 per cent, I have a concern about an epidemiological criteria.” That is, “There is

two sick people onboard, but I have tested negative for flu and they’ve been to 35

Singapore.”

DR TOBIN: Yes.

MR BEASLEY: All right. I will come back to that assessment very briefly, later. 40

But I would actually like to skip forward, if I may, to the risk assessment that was

conducted on 18 March. And before we get to 18 March, I think, you told me earlier

that you were receiving the CNDA guidelines updating definitions for suspect case.

All right. Can I have shown to you, just so we get it on the record, the guidelines for

both 10 March and 13 March 2020? 45

DR TOBIN: Thank you.


MR BEASLEY SC

MR BEASLEY: So if you look at the – happily, they’re highlighted in yellow

where there’s an indication of change, you will see, first of all, the guidelines for 10

March 2020. Do you have that?

DR TOBIN: Yes. 5

MR BEASLEY: And if you turn to page 5 of 26, and where it’s got:

Case definition: confirmed case

10

And then the:

suspect case definition

In relation to clinical criteria, fever or acute respiratory infection, e.g. shortness of 15

breath, cough, short throat, with or without fever, that had been consistent up until

this point, correct?

DR TOBIN: Yes.

20

MR BEASLEY: What changed in relation to this particular suspect case definition

was that there was no longer a reference to either China or high-risk countries, but

the epidemiological criteria broadened to:

International travel in the 14 days before illness onset. 25

DR TOBIN: Yes.

MR BEASLEY: And, I think, you’ve said in your statement that you were aware of

this change in the suspect case definition. And I will explore this in a moment. But 30

it wasn’t quite in the forefront of your head when you did the risk assessment.

Would that be fair enough?

DR TOBIN: Yes.

35

MR BEASLEY: All right. This – do you have a memory of having regard to or

reading this document at about the time it came out?

DR TOBIN: Yes. I think so.

40


DR TOBIN: Particularly this section.

MR BEASLEY: Okay. You will see at page 10 of 26, if you go to that, you will see 45

it describes infectious period:


MR BEASLEY SC

infectious period of COVID-19 remains unknown, however, there is some

evidence to support the occurrence of pre-symptomatic or asymptomatic

transmission. As a precautionary approach, cases are considered to be

infectious 24 hours prior to the onset of symptoms.

5

Did you have a – was that your general understanding and state of mind as at the

time this document came out?

DR TOBIN: Yes.

10

MR BEASLEY: All right. In terms of, I think, it’s fair to say, even though the

epidemiological criteria had changed to all international travel, I would assume, on

the basis that by this date the disease is in over 130 countries, so defining it in terms

of five or 10 countries is, probably, no longer making sense. But it would be correct,

wouldn’t it, that there were still considered to be at 10 March, if I could call it, 15

“riskier countries than others,” correct?

DR TOBIN: Yes.

MR BEASLEY: For example, China, obviously. Singapore - - - 20

DR TOBIN: South Korea, Iran, Italy were emerging too.

COMMISSIONER: So what’s - - -

25

MR BEASLEY: Even though it’s not a country, I think, Hong Kong was considered

a risk?

DR TOBIN: Intermediate risk, yes.

30

COMMISSIONER: Which date are we talking about?

MR BEASLEY: 10 March.

COMMISSIONER: So the countries in question are, I don’t - - - 35

MR BEASLEY: They were listed at page 12, as an example.

COMMISSIONER: Yes. I was just – I was just going to ask you about that.

Doctor, this notion of “returned travellers” – the epithet “returned” troubles me. 40

Does that necessarily mean you start your travel in Australia?

DR TOBIN: No. No.

COMMISSIONER: What does it mean? 45

DR TOBIN: Recent arrivals. And - - -


MR BEASLEY SC

COMMISSIONER: Maybe I understand English differently - - -

DR TOBIN: Yes. Sorry, yes.

COMMISSIONER: - - - so it really means “arrived travellers”? 5

DR TOBIN: Well, I think, that’s right. Yes.

COMMISSIONER: Pretty odd word, “returned” isn’t it, to use? I think, it may

have caused confusion is what I’m – I think, it may have had - - - 10

DR TOBIN: All right.

COMMISSIONER: - - - a serious effect. I may be wrong. An American who

travelled from the United States to Australia to catch the cruise ship would be 15

regarded, would he or she, as a returned traveller? Is that right?

DR TOBIN: Yes. Yes.

COMMISSIONER: Why? You can see the proposition I’m interested in, in the 20

definition:

Those who have undertaken national travel to any country outside Australia.

So the United States to Australia? 25

DR TOBIN: Yes. I agree. It could have been clear - - -

COMMISSIONER: Australia to New Zealand, New Zealand to Australia, you see

my problem? 30

DR TOBIN: It could have been clearly – more clearly defined. I’m - - -

COMMISSIONER: I think, you’re being too kind. It could have been defined.

What did – what do you – what meaning did you understand the definition was 35

intended to capture?

DR TOBIN: Anyone arriving from overseas from an exit point.

COMMISSIONER: So then preposition to is just silly, isn’t it? Not interested in 40

“to”, you’re interested in “from” aren’t you?

DR TOBIN: Yes.

COMMISSIONER: That’s the opposite. It doesn’t seem to be much of a definition, 45

does it?


MR BEASLEY SC

DR TOBIN: I think, it was generally understood in public health.

COMMISSIONER: What, “to” as meaning “from”?

DR TOBIN: That we were looking at people who were coming from overseas. 5

COMMISSIONER: No. I’m serious. Do you mean it was generally understood

that “to” meant “from”?

DR TOBIN: I think, how people read it was referring to people arriving from 10

overseas.

COMMISSIONER: I realise it can appear unkind to be doing this at a public

hearing after the event. But we only have words to pass messages to people. And

this is meant to be in the nature of a protocol, isn’t it? 15

MS FURNESS: Well, he didn’t write it, Commissioner, to be fair to the witness.

COMMISSIONER: No. No. No. I don’t – please, you understand that?

20

DR TOBIN: Yes. Yes.

COMMISSIONER: Do you know who wrote it? The individual, I mean?

DR TOBIN: I’m pretty sure it was a group process. But - - - 25

COMMISSIONER: Who were the individuals, if any, that you know in that group?

DR TOBIN: Well, it was prepared and endorsed by the Communicable Disease

Network of Australia. So all the members of that group are involved in reviewing 30

proposed changes to the guidelines and then they endorse.

COMMISSIONER: When did it occur to you that “to” means “from”?

DR TOBIN: I must say I – I interpreted it from the start, I think, as referring to 35

“from”.

COMMISSIONER: And that – doesn’t that strike you as an unusual use of English?

DR TOBIN: Yes. 40

COMMISSIONER: Well, sorry – but part of your job is looking at these documents

and contributing to the collegial debate on improving them, isn’t it? Or not? If you

tell me it’s not - - -

45


MR BEASLEY SC

DR TOBIN: Well, I think, the members of the CDNA were tasked to review that

and I understand they do a lot of wordsmithing, but it’s something they must have

missed.

MR BEASLEY: In any event, though, Doctor, if we go back to the “suspect case” 5

definition at – I’m not suggesting it doesn’t matter how a “returned traveller” is

defined, but the epidemiological criteria just captures anyone that’s engaged in

international travel in the 14 days before they got sick; correct?

DR TOBIN: Yes. 10

MR BEASLEY: Yes. All right. That guideline was updated on the 13th of March.

I won’t take you to it, because, relevantly, the “suspect case” definition didn’t

change. Were you – I think the Commissioner may have asked you whether you

were having regard to the publications coming out by the Communicable Diseases 15

Intelligence Journal, the epidemiological reports on COVID-19; were you reading

those?

DR TOBIN: Not consistently. No.

20

MR BEASLEY: All right. And I’m offering no criticism about that. But I will ask

you to consider what was in the 14 March report just to check whether it was your

understanding at the time. Commissioner, do you have this? It’s the - - -

COMMISSIONER: I do. 25

MR BEASLEY: - - - CDI - - -

COMMISSIONER: No. I do.

30

MR BEASLEY: - - - report of 14 March.

COMMISSIONER: Well, you called it a journal. I don’t think it is.

MR BEASLEY: Well, I might be glorifying it or insulting it. I’m not sure. I’m not 35

intending - - -

COMMISSIONER: No, no, no.

MR BEASLEY: - - - to do either. 40

COMMISSIONER: This is not a time in medical literary history where I’m going to

take sides on that one.

MR BEASLEY: Actually, I’m going to insist on I’m correct, because if you go to 45

the second page, it says:


MR BEASLEY SC

This journal is indexed by - - -

COMMISSIONER: Yes. That’s what I want to ask. Is this – this is described as a:

Peer-reviewed scientific journal published by the … Department of Health. 5

Is that your understanding of that?

DR TOBIN: Yes.

10

COMMISSIONER: All right. It describes its aim in disseminating information on

certain topics. Does it invite – does it publish only invited contributions or is it open

to unsolicited contributions; do you know?

DR TOBIN: I don’t know. 15

COMMISSIONER: And should I understand that the editorial advisory board are

what I might call professional advisors to the full-time editor?

DR TOBIN: I understand so, yes. 20

COMMISSIONER: And do you know whether the full-time editor, that is, Tanja

Farmer, is a medical scientist?

DR TOBIN: I don’t know. 25

COMMISSIONER: Or a biostatistician?

DR TOBIN: I don’t know. I’m sorry.

30

COMMISSIONER: Or an epidemiologist?

DR TOBIN: I - - -

COMMISSIONER: You don’t know. 35

DR TOBIN: I don’t know.

COMMISSIONER: Whereas, you do know about the background of the named

editorial advisory board personnel, don’t you? 40

DR TOBIN: Yes.

COMMISSIONER: Yes. And they are a combination of medical scientists,

epidemiologists, I presume with some biostatistical expertise as well, and lots of 45

public health background; is that correct?


MR BEASLEY SC

DR TOBIN: At a very eminent level, I think.


MR BEASLEY: If you go to page 1 of 17 – I don’t know whether you’ve got 89 5

written in the bottom corner, but 1 of 17 of the report. And I’m just putting – the

reason for taking you to this is to put your assessment on the 18th of March in

context. By the date of this publication, 14 March – before we get to it, first of all,

you would have been aware – and please don’t think I’m – this question is intended

to be rude – but you obviously were aware that the World Health Organisation had 10

declared a pandemic on the 10th of March?

DR TOBIN: Yes.

MR BEASLEY: Were you aware that the Centre of Disease Control in the United 15

States, on the 14th of March, had issued, under federal legislation there, a no-sail

order for all cruise ships because of the risk of COVID-19?

DR TOBIN: I don’t recall that.

20

MR BEASLEY: All right. Were you aware – it’s the day after this particular

document, but on 15 March, you would have been aware that the Australian

Government effectively closed our borders; correct?

DR TOBIN: Yes. 25

MR BEASLEY: And that only cruise ships returning from – on a return trip from

the evening of either 15 or 16 March were allowed to re-enter an Australian port?

DR TOBIN: Yes. 30

MR BEASLEY: All right. And various other measures had been taken – many

measures taken – in relation to preventing the spread of the disease: I mean,

restrictions on the number of people that can be in a room, social distancing, and the

like. Of course, you obviously kept abreast of all of those orders that were made by 35

various governments?

DR TOBIN: As best I could.

MR BEASLEY: Yes. All right. You will see here that, on page 1 of 17, that, as at 40

least, on the publication date for this report, of 14 March, there’s 295 confirmed

cases of COVID in Australia.

DR TOBIN: Yes.

45

MR BEASLEY: Can you take my word for it that, on the 7th of March, it was 71

cases. And by the 22nd of March, it was 1765 cases, confirming something I think


MR BEASLEY SC

you would have understood that, left uncontrolled and without precautionary

measures, this disease was taking off exponentially as it did in other countries like

Italy and the United States and the UK, and the like; correct?

DR TOBIN: Yes. 5

MR BEASLEY: All right. You’ll see, over the page, at page 2 of 17, that, at least

in terms of confirmed cases, there’s now a little over 140,000 confirmed cases

globally and 5,393 deaths and the disease has been reported in 134 countries;

correct? 10

DR TOBIN: Yes.

MR BEASLEY: And I think, by the 22nd of March, that figure had become 175

countries. Again, you were aware by this stage that the disease had spread globally, 15

no doubt the reason for the World Health Organisation declaring it a pandemic in the

first place?

DR TOBIN: Yes.

20

MR BEASLEY: Correct. All right. Page 3 of 17. You will see, in the second

paragraph of the left-hand column that:

Of the 295 confirmed cases, 53 per cent … reported symptoms.

25

And:

A total of fifteen symptoms were reported with fever –

Representing about 69 per cent of cases. Again, consistent with your understanding 30

that there could be a positive result for someone that had no symptoms, first of all;

correct?

DR TOBIN: Yes.

35

MR BEASLEY: And, equally, whilst a majority of people with symptoms have

fever, a significant amount – I think we discussed before, depending on what report

you read – 10 to 30 per cent don’t have fever; correct?

DR TOBIN: Yes. 40

MR BEASLEY: Yes. All right.

COMMISSIONER: Doctor, how should I read the statement that:

45

Of the 295 confirmed cases ... 156 reported symptoms


MR BEASLEY SC

Does that mean that the balance may have had symptoms but did not report them?

Or does it mean that, after investigation, they had reported no symptoms?

DR TOBIN: I’m not sure, but I think it may actually reflect a delay in data being

provided to prepare this report. 5

COMMISSIONER: So it may be lack of report rather than, upon investigation,

reporting those symptoms?

DR TOBIN: I think that’s the more likely explanation. 10

COMMISSIONER: Or a combination, I should say, of the two?

DR TOBIN: Yes. Or – yes.

15


MR BEASLEY: The word the Commissioner is using, which is used here –

“symptoms”. A symptom is something that a patient reports rather than the doctor

observe – or it can be both, I suppose. But, primarily, it’s something the patient 20

reports?

DR TOBIN: Yes.

MR BEASLEY: Is that right? 25

DR TOBIN: As opposed to a sign, I suppose.

COMMISSIONER: Yes.

30

DR TOBIN: It’s something the doctor observes.

MR BEASLEY: Yes.

COMMISSIONER: But, so for our purposes, a temperature measured by a device 35

will be a sign and someone saying they’ve got a sore throat will be a symptom; is

that correct?

DR TOBIN: And, equally, we would accept if someone reports feeling feverish as a

symptom; we’d accept that too. 40

MR BEASLEY: You will see, on page 8 of 17, where there’s a discussion of

international cases and, in the right-hand column, there is, in this week’s version of

this report, there is a focus on Italy, which was going through a fairly rapid rise in

cases with fairly horrendous results for that country. 45

DR TOBIN: Yes.


MR BEASLEY SC

MR BEASLEY: But, again, indicating that the total number of confirmed COVID

cases reported by 134 countries now. And increased almost threefold compared in

the preceding weeks. So, again, an exponential rise; correct?

DR TOBIN: Yes. 5

MR BEASLEY: And on page 10 - - -

COMMISSIONER: Sorry, before you move to page 10, may I?

10

MR BEASLEY: You may.

COMMISSIONER: On page 8 of 17, in the box:

Country in focus: Italy 15

Is that – does that convey to you, on your looking at it now, information of a kind

you think you were aware of without needing to read it in this form, in this

publication? Were you aware of Italy’s - - -

20

DR TOBIN: Yes. Yes.

COMMISSIONER: - - - I think, disastrous experience?

DR TOBIN: There was a lot of reporting about Italy at that time. Both through the 25

- - -

COMMISSIONER: So well before the Ruby Princess docked for the second time

- - -

30

DR TOBIN: Yes.

COMMISSIONER: - - - in relation to your role as the Chief Human Biosecurity

Officer?

35

DR TOBIN: Yes.

COMMISSIONER: And is it fair to say that that is information which lead you to

the view that there was very large social and economic consequences in the train of

this infection spreading in the community? 40

DR TOBIN: I think, it was a particularly severe example. But, I think, we had

already come to that conclusion based on the experience of South Korea and Iran

before them.

45

COMMISSIONER: So it was clear to you without any hesitation by the second time

you dealt with the Ruby Princess, that in terms of financial measures, the economic,


MR BEASLEY SC

that is both society wide and individually felt financial and property effects would

dwarf any likely expenditure on prevention. Is that right?

DR TOBIN: I must admit to not having a strong health economics background.

But, I think, that’s a reasonable, a very reasonable assumption, or proposition, I 5

would say.

COMMISSIONER: I take it amongst you and your fellow professionals at that time,

it was understood if I can use a homely saying, a stitch in time can save 9. So a bit of

money such as on compulsory quarantine may be almost infinitesimal as expenditure 10

compared to the economic harm caused and financial detriment suffered by

individuals for want of such quarantine.

DR TOBIN: Yes. Yes.

15

COMMISSIONER: That, I think, has been, for centuries, at least, probably, at least

1000 years, one of the abiding aspects and informing values of public health science,

hasn’t it?



MR BEASLEY: I was taking you to page 10 of the document. You will see the

heading: 25

Transmission

I think, this was, certainly, well-understood by the date of this document that human

transmission of the disease is either via droplets or by fomites from an infected 30

person to a close contact?

DR TOBIN: Yes.

MR BEASLEY: And you will see there, in relation, in this section of this report on 35

transmission, it says near the bottom of that main paragraph:

COVID-19 can often present as a common cold-like illness where the virus is

shed for a prolonged time after symptoms end.

40

Was that well-known by the time?

DR TOBIN: Yes. I think, we were - - -

MR BEASLEY: Yes. And incubation period, I think, we discussed this previously. 45

You will see there the mean is 5-6 days, correct?


MR BEASLEY SC

DR TOBIN: Yes.

MR BEASLEY: All right. And then, clinical features are discussed in the next

column:

5

Presents as a mild illness in the majority of cases with fever and cough being

the most commonly reported symptoms. Sever or fatal outcomes tend to occur

in the elderly or those with comorbid conditions.

Comorbid conditions is a reference to the person having some other illness that is 10

causing them to suffer in addition to whatever the COVID-19 is doing to them,

correct?

DR TOBIN: Yes. Yes.

15

MR BEASLEY: All right. And then, there’s – there’s some discussion about

median recovery times which are estimated to be 27 days in 20-29 year olds and 32

days in the 50-59 year olds and 36 days in those ages over 70. Again, for people

- - -

20

COMMISSIONER: What happened to those of us between 60 and 70?

MR BEASLEY: I don’t know.

COMMISSIONER: They don’t suffer - - - 25

MR BEASLEY: I don’t think you’re considered important.

COMMISSIONER: Yes.

30

MR BEASLEY: I’m sure that’s not right. It must just be a drafting error.

COMMISSIONER: Yes.

MR BEASLEY: In the same way that “returned traveller” was. In terms of – can I 35

just ask you this, in terms of the difference between this disease and, for example,

influenza, how do those recovery times stack up compared to say, influenza A?

DR TOBIN: I think, they’re much longer than you would expect for an influenza

infection, particularly, in those younger age groups. 40

MR BEASLEY: And that was the answer I expected. And that’s, no doubt, in

terms of public health assessment, there is a concern that in the circumstances where

this disease becomes either severe or critical, that there’s a long period of time for

recovery and that, in itself, is a strain on the health system. 45

DR TOBIN: Yes.


MR BEASLEY SC

MR BEASLEY: Yes. All right.

COMMISSIONER: Before you move on from that page.

MR BEASLEY: Yes. 5

COMMISSIONER: Doctor, we’ve – got these in their successive iterations. There

are two things I want to ask you about on this page that happens to be in issue report

number 7. First of all, by report number 7, an earlier statement concerning the

possibility of asymptomatic transmission seems to have dropped out. I can tell you 10

that. I don’t need to take you through the text.

DR TOBIN: Sorry.

COMMISSIONER: Does – do you remember in your personal, sate of the art, 15

understanding of this disease, there ever coming a time when asymptomatic

transmission having been raised as a possibility had then been scotched?

DR TOBIN: No.

20

COMMISSIONER: No. Thanks. As opposed to, I think, there’s a German study

which, upon scrutiny, probably didn’t support the possibility of asymptomatic

transmission. You are aware of that, I think?

DR TOBIN: Yes. 25

COMMISSIONER: Yes. Now, the second thing was this. In that left-hand column

under the heading:

Transmission 30

There is a statement that’s repeated in a number of these reports. And I quote;

Compared to cases identified through symptom-based surveillance, cases

identified through contact-based surveillance were associated with a 2.3 day 35

decrease from symptom onset to disease confirmation and 1.9 day decrease

from symptom onset to isolation.

Now, just getting a few of those terms, the surveillance there is the ordered

observational conduct of persons like yourself and your staff. Is that right? 40

DR TOBIN: Yes.

COMMISSIONER: And “symptom based” means surveillance which includes and

largely, comprised obtaining from somebody their self-report of either their current 45

or recent previous experience, is that right?


MR BEASLEY SC

DR TOBIN: I would say that’s when someone presents with symptoms for

assessment - - -

COMMISSIONER: If somebody says, “I have a sore throat” etcetera?

5

DR TOBIN: Yes. But it’s their volition to go and be assessed. Yes.

COMMISSIONER: And contact-based surveillance is connected with this notion of

tracing, namely, you start with – I will just call it a case, at the moment. And persons

with expertise guided by experts like yourself will make inquiries so as to ramify the 10

possibilities of sufficiently close contact to be of epidemiological significance. Is

that right?

DR TOBIN: Yes.

15

COMMISSIONER: And of course, though they may overlap as classes, those

thrown up by symptom-based surveillance and those thrown up by contact-based

surveillance, because tracing may produce somebody who says, “Yes. I have had a

sore throat for the last three days.” that is only an overlap because a contact-based

identified case may well have no symptoms. Is that right? 20

DR TOBIN: I think - - -

COMMISSIONER: In other words, you may find somebody through contact

tracing, that is, contact-based surveillance, either without symptoms or before they 25

develop symptoms; is that right?

DR TOBIN: We would identify them as a contact who’s at risk because of their

exposure, and we’d be - - -

30

COMMISSIONER: Well, please be aware that this is a sentence that talks about

cases, you see there? That’s cases of COVID-19, isn’t it?

DR TOBIN: Yes. And so these are contacts who end up being cases.

35

COMMISSIONER: Exactly.

DR TOBIN: And - - -

COMMISSIONER: That’s why I’m asking. Yes. 40

DR TOBIN: Yes. So in our process, we would be asking them, either daily or

regularly, if they had developed any symptoms.

COMMISSIONER: All right. 45

DR TOBIN: And so we could have a diagnosis earlier. I think that’s the point.


MR BEASLEY SC

COMMISSIONER: This is a sentence that, in relation to the decrease in duration

from symptom onset to disease confirmation, from symptom onset to isolation, is of

public health importance here, isn’t it?

DR TOBIN: Yes, yes. 5

COMMISSIONER: Because the shorter time from symptom onset to isolation

probably the reduction in the risk of further transmission by that person; correct?

DR TOBIN: Yes. 10

COMMISSIONER: Similarly, the shorter the time from symptom onset to disease

confirmation, there is a multiple benefit, because, upon disease confirmation, there

will be, in particular, triggered assiduous tracing of all of that person’s contacts; is

that correct? One of the consequences of disease confirmation is that you and your 15

staff and the tracers swing into action to find out who’s been in close contact,

etcetera - - -

DR TOBIN: Sure.

20

COMMISSIONER: - - - of that person - - -

DR TOBIN: Yes, that’s right.

COMMISSIONER: - - - all of which then ramifies and multiplies the benefit to be 25

gained, in public health terms.

DR TOBIN: Yes.

COMMISSIONER: Well, then, isn’t that a very practical and also principled way of 30

showing the importance of not waiting for symptoms?

DR TOBIN: Well, obviously, not – my interpretation of this is that symptoms are

happening in both groups.

35

COMMISSIONER: Eventually, yes. There’s no doubt about that.

DR TOBIN: But that the contact-based surveillance identifies sooner when

someone develops symptoms than relying on that person to self-present. They may

wait 24 hours thinking it’s going to get better, until they see their GP and are 40

diagnosed.

COMMISSIONER: I think that’s my point. This points out a practical and

principal reason not to wait for symptoms; isn’t that right? Not to wait for

symptoms to bring somebody to their doctor or a hospital? To trace them, for 45

example, through contact?


MR BEASLEY SC

DR TOBIN: Well, I - - -

COMMISSIONER: Contact-based cases, as you say, it appears, from the way this is

written, they are eventually symptomatic.

5

DR TOBIN: Yes.

COMMISSIONER: In this step – in that sentence. But as opposed to symptom-

based cases, that is, the surveillance being symptom based as to the surveillance

being contact-based, with the contact-based surveillance, you don’t wait for them to 10

present with symptoms. You got to them because they have been nominated or

discovered as contacts of somebody who is a confirmed case. Is that right?

DR TOBIN: Yes. But we wouldn’t normally do testing until they develop

symptoms. 15

COMMISSIONER: Is that right?

DR TOBIN: Yes.

20

COMMISSIONER: Is that still true?

DR TOBIN: It – there are some scenarios where we might do, now, testing for

asymptomatic contacts in high-risk settings, aged care facilities would be a good

example. But for cases identified in the community it’s still, I think, the practice that 25

we would do monitoring and not do testing until we have – until they report

symptoms.

COMMISSIONER: And is that, partly in your mind, intelligible because there’s

nothing you can do about it anyhow, the disease? 30

DR TOBIN: Partly. But, I suppose, we are reassured, if someone has been

identified as a contact they have been asked to be or required to be in home isolation.

So - - -

35

COMMISSIONER: What if they’re married to each other and living together?

DR TOBIN: Well, people who are identified as close contacts are given detailed

information about how to try and separate, as much as possible, within a household.

And - - - 40

COMMISSIONER: And that’s because the person without the symptoms and not a

confirmed case yet might, in fact, have the infection. Is that right?

DR TOBIN: Yes. 45

COMMISSIONER: Or, at least, partly because?


MR BEASLEY SC

DR TOBIN: Yes. And – that issue of the risk that you might be infectious,

particularly, in that first 24 hours prior to symptoms developing to - - -

COMMISSIONER: And infect others?

5

DR TOBIN: Yes.

COMMISSIONER: And what, you wait until they develop symptoms, this close

contact of a confirmed case before you test them?

10

DR TOBIN: Yes.

COMMISSIONER: And then, you do that progressively, do you?

DR TOBIN: Yes. And then, hopefully - - - 15

COMMISSIONER: Doesn’t that contain a built-in lag with risk?

DR TOBIN: Well, I think, that provided those close contacts are being assiduious in

their – in following our directions about self-isolation, they won’t have exposed other 20

people at the time that they are diagnosed.

COMMISSIONER: This sentence I asked you about, though, doesn’t it suggest that

there is a time advantage to be gained by contact-based surveillance, rather than

symptom-based surveillance? 25

DR TOBIN: I think that, we talk about “symptom-based surveillance,” these are

people who are presenting in the community who haven’t been identified as a close

contact.

30

COMMISSIONER: Yes. I agree.

DR TOBIN: And - - -

COMMISSIONER: And contact-based is somebody with a connection to a 35

confirmed case or a suspect case. Is that right?

DR TOBIN: Yes. Yes.

COMMISSIONER: And I may not be making myself clear. 40

DR TOBIN: I’m sorry.

COMMISSIONER: That is a sentence that seems, to me, to suggest that there is

public health preventive advantage to be gained from not waiting for a symptom 45

before dealing with the status of a person who, upon testing, becomes a case. How


MR BEASLEY SC

else would there be the temporal advantage referred to in that sentence? They would

all be symptom-based cases.

DR TOBIN: I think, my take on this description is that being, having someone

under contact surveillance allows a more rapid identification - - - 5

COMMISSIONER: Quite so.

DR TOBIN: - - - that they’re a confirmed case. And that’s - - -

10

COMMISSIONER: You treat them as a suspect case in advance of them developing

symptoms, isn’t that right?

DR TOBIN: I wouldn’t use the term “suspect” but - - -

15

COMMISSIONER: Why not?

DR TOBIN: We tend to reserve that for people with symptoms who have yet to be

confirmed by diagnosis. But we, certainly, would - - -

20

COMMISSIONER: Isn’t that, in hindsight, a mistake?

DR TOBIN: Well, I think, the management of people identified as “close contacts”

is, technically, quarantine. And we think, that’s a very effective risk-management

process if done properly and, certainly, if people are not complying with it, it 25

presents a risk. And, but we would certainly identify, like to identify all close

contacts of cases and have them follow this procedure.

COMMISSIONER: Because they may, themselves, be infected, already.

30

DR TOBIN: Yes. Yes.

COMMISSIONER: And transmit to others.

DR TOBIN: But we, certainly, also find that, probably, the majority of close 35

contacts don’t become cases.

COMMISSIONER: I don’t think we’re talking about a balance of probabilities, are

we?

40

DR TOBIN: I’m not - - -

COMMISSIONER: We’re not interested in protecting only the 51 per cent, are we?

DR TOBIN: No. I don’t – no. No. No. 45


MR BEASLEY SC

COMMISSIONER: The figures are much – much – smaller than 51 per cent, aren’t

they?

DR TOBIN: Yes. And I wasn’t making a play on “probably”.

5

COMMISSIONER: I need to understand, as clearly as I can, whether you have in

mind that there’s a – there has been an observably rare occurrence that you don’t

think should be cared about in public health terms? Nothing that I’ve read of yours

suggests that you take that view, at all. That these are relatively uncommon

outcomes, health outcomes, which considerable effort should be devoted to 10

preventing.

DR TOBIN: Yes. No. And I’m sorry if I gave that - - -

COMMISSIONER: Like many bad health outcomes. 15

DR TOBIN: No. I’m - - -

COMMISSIONER: They are not, necessarily, the fate of all of us. They may be the

fate of only a few of us. But they are such that they should be prevented and 20

addressed, if they can’t be prevented. That’s - - -

DR TOBIN: I agree.

COMMISSIONER: - - - that’s elementary, isn’t it, in the healthcare ethical area? 25


COMMISSIONER: You don’t say, “Most of us won’t get this. So I won’t worry

about those who do.” Do you? 30

DR TOBIN: I apologise if that was the impression I was giving. That’s not what I

meant.

MR BEASLEY: Well, I think, it’s really quite important that, when you talk about 35

things being “rare” you are at risk, from time to time, if I may say so, of it appearing

that you – that there was an unspoken rider, “and therefore, doesn’t need to be

worried about”.

DR TOBIN: No. I – I think, in our approach to contact tracing and management, 40

we take the view that everyone is a potential case - - -

MR BEASLEY: Exactly.

DR TOBIN: - - - and we wanted to make sure they are appropriately managed until 45

they pass through that incubation period and haven’t developed symptoms. And - - -


MR BEASLEY SC

COMMISSIONER: And, in your design of processes, you would encourage a bias

to over-inclusion, rather than under-inclusion, wouldn’t you?

DR TOBIN: Yes. Well, we – take advice from CNDA, again, about how to define

a “close contact”. 5

COMMISSIONER: But, surely, there is always a bias to over-inclusion rather than

under-inclusion?

DR TOBIN: I think so. 10

COMMISSIONER: Designedly because what you lose if you over-include doesn’t

really matter in the scheme of things compared to what you lose if you under-

include, isn’t that right?

15

DR TOBIN: Yes. I think, it is a balance, though, in - - -

COMMISSIONER: No doubt. But if we introduce financial expenditure, it really,

doesn’t become a close thing, does it?

20

DR TOBIN: Yes. I suppose, I was thinking more about the – human resource

impact if – we make it very broad, about who is defined as a close contact, even very

tiny casual contact. And that would mean a very large number of people to introduce

into contact monitoring.

25

COMMISSIONER: Unquestionably. Unquestionably, yes. Thank you.

MR BEASLEY: In relation to the assessment made for the Ruby Princess on 18

March, I want – first of all, I need your assistance, Doctor, in relation to what you

actually received because it’s not 100 per cent clear to me. Can I ask you to go to tab 30

48 of the bundle. All right. And you would see there, the bottom of the page, you

will see an email from Ruby Senior Doctor to various people, sent at 18 March at

9.38 am. Do you see that?

DR TOBIN: Yes. 35

MR BEASLEY: It starts:

Good morning, Laura

40

And:

Apologies for being a little bit late

Do you have that email? 45

DR TOBIN: Yes.


MR BEASLEY SC

MR BEASLEY: Yes. And that includes, included in that email was the full ARD

log of the ship and, over the page, an answer to various questions that had been

posed the day before by Laura-Jayne Quinn from the South East Sydney LHD. That

email from Laura-Jayne Quinn and then the response from the Ruby Senior Doctor

on the morning of 18 March is then passed on in an email from Laura-Jayne Quinn at 5

about 10.55 to Professor Ferson and cc’d to Dr Sheppeard and Ms Ressler enclosing

the log and the pre-arrival risk assessment form. It’s:

To Mark and Kelly,

10

What I wanted to ask you, you’re not – you don’t seem, well, you’re definitely not

included in this email. But did this email find its way to you, you believe?

DR TOBIN: No. No.

15

MR BEASLEY: All right. So going over the page, then, to page 40 – sorry, tab 49.

I need to ask you this. This is - - -

COMMISSIONER: Sorry, is tab 48 the last four digits on the number up the top are

1896, I think, well, no 1890, second last, yes, 1896? 20

MR BEASLEY: Sorry? No.

COMMISSIONER: In tab 48 - - -

25

MR BEASLEY: No. 18 - - -

COMMISSIONER: The second last page is 1896 the last four digits?

MR BEASLEY: 1896. Yes. You’re quite correct. But that - - - 30

COMMISSIONER: Is that – Doctor, is that a form that you saw?

MR BEASLEY: Yes. It is. But can I – can we get to it?

35

COMMISSIONER: Sorry. I thought you were moving away from that document.

MR BEASLEY: I’m not moving away from the documents. What I was – asking

the Doctor - - -

40

COMMISSIONER: My apologies.

MR BEASLEY: That’s all right. Accepted. What – all I was asking the Doctor to

confirm was that he wasn’t included and didn’t see this particular email.

45

COMMISSIONER: That’s all right. That’s all right. I didn’t - - -


MR BEASLEY SC

MR BEASLEY: Yes.

COMMISSIONER: - - - want the record to say that he didn’t get that. Because I

thought, he did get it.

5

MR BEASLEY: Undoubtedly, he got the risk assessment form. But we will come

to that.


10

MR BEASLEY: If you go to tab 49, Doctor, you will see there’s another email, this

time, from Ms Ressler, to Professor Ferson, Dr Sheppeard and others, and you will

see, in the middle of that email it says:

Plan: receive swabs 15

Etcetera. Did you get a copy of that email, at any stage?

DR TOBIN: I think, this was included in when Professor Ferson - - -

20

MR BEASLEY: It ended up in a chain that went to you - - -

DR TOBIN: Yes.

MR BEASLEY: - - - did it? 25

DR TOBIN: Yes.

MR BEASLEY: Okay. All right. Well, if you go over the page, we do get you now

cc’d in to this chain of emails. 30

MS FURNESS: This is tab 51.

MR BEASLEY: Sorry, tab 50, I should have – well, if you go, sorry, looking at the

first page that’s, clearly, obviously an email from Professor Ferson to you, Associate 35

Professor Forssmann and Dr Hess sent at 1 pm on 18 March. You see that?

DR TOBIN: Yes.

MR BEASLEY: What do – what you mean is if you go back in time to Ms 40

Ressler’s email of 18 March at 12.25 where it says:

Plan: receive swabs

Etcetera. That was part of the chain you received and you saw that at the time? 45

DR TOBIN: Yes.


MR BEASLEY SC

MR BEASLEY: All right. Attached to this chain of emails is what the

Commissioner was about to raise with you as to whether you got it, that is pre-arrival

risk assessment form. So you see that - - -

DR TOBIN: Yes. 5

MR BEASLEY: - - - is the last document. That’s, obviously, in terms of your

consideration of risk, that was a document you had regard to?

DR TOBIN: Yes. 10

MR BEASLEY: What I wanted to ask you was, did you actually get a copy of the

acute respiratory disease log?

DR TOBIN: No. 15

MR BEASLEY: All right. I will come back to that. So what you received was the

email from Ms Ressler attaching the pre-arrival risk assessment form with the

matters it sets out. And then, the various emails from the other people on the panel

saying, “I think it’s low.” Your response is: 20

Thanks, I agree, low risk.

No, that’s the Sea Princess, maybe. Mark Ferson, sorry, Professor Ferson - - -

25

MS FURNESS: Tab 51.

MR BEASLEY: Yes. I will get to that. Yes. Thanks. Professor Ferson has said:

Ruby Princess, probably low but higher rate of ARI. None are travellers, but 30

ILI greater than or less than one per cent and flu A pos. Needs discussion

about getting swabs to the lab.

DR TOBIN: Yes.

35

MR BEASLEY: You see that. That was his view. As my friend has just reminded

me, your response - - -

COMMISSIONER: That’s not a response, is it?

40

MR BEASLEY: No. That’s not a response from Dr Tobin. But Dr Tobin’s

response is – I’m struggling to find it now, you agreed that it was a low risk

assessment.

COMMISSIONER: I think, it’s the first page of 51, isn’t it? 45

DR TOBIN: Yes.


MR BEASLEY SC

MR BEASLEY: Yes. It is.

MS FURNESS: Yes.

MR BEASLEY: Yes. Yours – is tab 51, 2.17 pm: 5

I agree, low risk. Also happy with the testing plan.

DR TOBIN: Yes.

10

MR BEASLEY: All right. Your assessment in relation to the risk category for this

ship, then, was aside from considering what your colleagues thought, essentially,

based on the information that was contained in that pre-arrival risk assessment form,

correct?

15

DR TOBIN: Yes.

MR BEASLEY: And you’ve set out, and I would like you to go to it now, at

paragraph 75 of your statement, your reasons why you assessed this ship as low risk.

You’ve said that: 20

The most significant factor was the absence of passengers or crew who had

travelled through China, South Korea, Iran or Italy in the last

In the 14 days before embarkation. And you say: 25

And the fact that there were, therefore, no high-risk passengers or crew.

What do you mean by “high-risk passengers or crew”? Simply that they hadn’t

travelled to those countries? 30

DR TOBIN: Yes.

MR BEASLEY: All right. Then, you say, you placed weight on the fact that:

35

While a fair number of passengers and crew presented with respiratory

symptoms

Now, I assume that the reference to “fair number” is to the 104 people or 2.7 per cent

of passengers and crew that had presented to the ship’s clinic with a respiratory 40

illness, correct?

DR TOBIN: Yes.

MR BEASLEY: You say: 45


MR BEASLEY SC

Less than one per cent of passengers and crew had presented with an

influenza-like illness.

Can I ask you this? I mean, certainly, 0.94 per cent is, technically, less than one per

cent. I’m just wondering whether, if one per cent is significant, as you say it is in 5

paragraph 75, did you, at any stage, consider, perhaps, a more precautionary

approach and treating – first of all, treating 0.94 per cent as 1 per cent, given it’s so

close to that mark?

DR TOBIN: I think that was a consideration, but as I think I’ve mentioned, I didn’t 10

feel that the one per cent was a hard and fast rule.

MR BEASLEY: No.

DR TOBIN: And, certainly, it was less than – even significantly less than one per 15

cent. Like the previous cruise, there are other issues of concern. It certainly

wouldn't be dependent on that.

MR BEASLEY: All right. Can I ask you this, whether this would be important.

You weren't supplied with the log, you said, correct? 20

DR TOBIN: Yes.

MR BEASLEY: That means, I assume, unless someone told you, and please tell the

Commissioner if they did, you were unaware how many people were presenting with 25

either an ILI or acute respiratory illness on any particular day on the cruise, correct?

DR TOBIN: Yes.

MR BEASLEY: And do I take it that that meant you were – in making your 30

assessment, you were unaware that – of, I think, the ultimate number of – it’s

important to note that there was a subsequent log supplied by the ship, that you

obviously weren't aware about on 18 March, but let me put it in these terms. The

vast majority of people that presented at the ship’s clinic with an acute respiratory

illness or an ILI had done so from 15 March onwards, so 15, 16, 17 March in terms 35

of the log that was sent to your other colleagues that you didn’t get. Would you have

taken it as being important in your assessment to know that the nought .94 per cent

figure was a figure that was on an upward trend?

DR TOBIN: I think that would've been useful information. I'm not sure whether it 40

would've changed - - -

MR BEASLEY: I appreciate your answer, but can I suggest to you that the answer

is that it has to be, isn't it, that it’s relevant information for you to know if that figure

is going in an upward trend? 45

DR TOBIN: It would certainly make me more concerned, I suppose.


MR BEASLEY SC

MR BEASLEY: Yes. Equally, can I ask you this, did you consider – I will

withdraw that. If you had your time again, do you think it would've been more

prudent for you to insist on seeing the Acute Respiratory Diseases Log from the ship

before you made your assessment of low risk?

5

DR TOBIN: I was confident that was being reviewed by my colleagues .....

MR BEASLEY: No, no. I'm asking you about your assessment, Doctor, just your

assessment of low risk or high risk or medium risk. When you have to turn your

mind to it, it would've been important to know or relevant at least to know for your 10

decision-making that that nought .94 percent figure was on not just an upward trend,

but a significantly upward trend? Correct? It can’t be irrelevant, Doctor.

DR TOBIN: Possibly.

15

MR BEASLEY: Well, you say “possibly”. Can I suggest to you that it is a certainty

that in doing a proper assessment of risk on this ship, that one matter of relevance to

you in making that assessment is how many people are getting sick late in this cruise

and is that nought .94 per cent figure on an obvious upward trend?

20

DR TOBIN: I don't believe that we had talked about disease trajectory specifically,

so I wouldn't be looking for that.

MR BEASLEY: I'm not suggesting you did and - - -

25

COMMISSIONER: I’m going to suggest - - -

MR BEASLEY: - - - I don't mean to be rude, but you’re not answering the question

there.

30

COMMISSIONER: I'm going to suggest it. Why wouldn't you talk about disease

trajectory? So you make a manual gesture, which won’t show up on the transcript,

but believe me - - -

DR TOBIN: Sorry. Sorry. I’m finding the words. In retrospect, I think that 35

would've been useful information to know.

COMMISSIONER: Well, I’ve been struck by how many times, including in your

material, references made to clinical judgment, which strikes me – I’m sorry if this

seems unkind – a bit odd when it’s used by medical practitioners who haven't seen 40

the patient or looked at individual records. So it’s obviously used in a more

generalised sense than the usual understanding of clinical judgment. I don't want

anyone making a clinical judgment on me, for example, without knowing anything

about my case. Do you understand? A clinical judgment in the way you’ve been

using it, in the context I’ve just referred to, seems to call upon an understanding of 45

the natural history of the disease and what has been observed in the past and in the

very recent present about this novel microorganism concerning what is thought in a


MR BEASLEY SC

precautionary sense to be the kind of behaviours, both of it and of us, that might need

to be attended to by preventive experts. Have I captured that correctly?

DR TOBIN: Yes.

5

COMMISSIONER: Well, now, isn't an upward trajectory of a disease or an

infection thought to be relatively highly contagious of very significant relevance in

making a judgment as the Chief Human Biosecurity Officer for pratique of this ship

in the face of COVID?

10

DR TOBIN: I think looking at the assessment overall, there are a number of factors

we were considering and - - -

COMMISSIONER: Just try and concentrate, please, on my question about upward

trajectory. 15

DR TOBIN: Yes. Just that one of the key factors that was reported in this

assessment was that they had 24 cases of influenza. So it might've been assumed that

an upward trajectory of cases was related to an influenza outbreak. That's one

possible explanation for it. 20

COMMISSIONER: The 24 not positive for influenza with no way of knowing or

..... assessing false positives or false negatives; is that right?

DR TOBIN: We understand that rapid testing used on cruise ships isn't as accurate 25

as in the Public Health laboratories.

COMMISSIONER: In other words, you proceeded on the basis that you can’t do

anything about positive being false negatives or false positives, so you – at the

precautionary stage, you can’t take that into account in any quantitated way; is that 30

right?

DR TOBIN: I think you can – we’re fairly confident about the positive results and

they had a very low false positive result.

35

COMMISSIONER: So 24 positive out of 48 tests, without knowing more about that

class of 48, to pick up earlier language I’ve asked you about, flu doesn't seem to be

explaining all of that ILI.

DR TOBIN: Possibly not all of it, but it’s explaining half of it and it’s possible that 40

others went undetected or untested.

COMMISSIONER: But you wouldn't speculate in a biased fashion, would you?

Isn't it possible also that they didn’t have flu?

45

DR TOBIN: Certainly, it’s possible.


MR BEASLEY SC

COMMISSIONER: Wouldn't you take that into account?

DR TOBIN: Yes. We would take that into account.

COMMISSIONER: Well, now, I'm trying to understand – I will do it in stages. Do 5

you resist the notion that the upward trajectory of the infection producing the 0.94

per cent calculation – do you resist the notion that that’s significant for you to know?

DR TOBIN: I think that would have raised my level of concern and - - -

10

COMMISSIONER: You’re resisting the notion of it being significant. Why is that?

DR TOBIN: I suppose there was no flags for me. This – certainly, we knew - - -

COMMISSIONER: Sorry? 15

DR TOBIN: - - - that was an option that we could request the ARD log if required.

If we were concerned about it, we wanted more information as panellists. I didn’t

see anything in this that would ask me – that would suggest that I should look at the

ARD log in more detail. 20

COMMISSIONER: The problem is that this is a snapshot. That's not a criticism of

it. But as a snapshot, it denies you knowing what the trajectory of the incidence of

reported ILI has been, doesn’t it?

25

DR TOBIN: It does and perhaps - - -

COMMISSIONER: Well, now, as a matter of ordinary English, something would

be capable of being called an outbreak, doesn't have to be a sinister outbreak, it might

just be humans living with viruses. It would be an outbreak long before you got to 30

36 out of 3795, wouldn't you? It would be an ordinary ..... it could be an outbreak of

two plus, couldn't it?

DR TOBIN: Could be.

35

COMMISSIONER: And that’s a very – that’s a common place of your art, if I can

call it that, isn't it?

DR TOBIN: Yes. I suppose if it was two cases of coronavirus infection - - -

40

COMMISSIONER: Exactly so. Totally different response because of the gravity of

the outcome, but it still may be an outbreak of common cold. Correct?

DR TOBIN: Yes.

45

COMMISSIONER: Yes. Which for some people might be serious.


MR BEASLEY SC

DR TOBIN: Yes.

COMMISSIONER: Yes. Well, now, you would need to know as between what

I’ve named as the minimum, two, you would need to know, wouldn't you, in order to

evaluate these things in terms of what might be going on clinically, how quickly you 5

move from two to 36 and if, as might be expected, we actually haven't got time by

each individual case, all we’ve got is the snapshots from time to time, you would

look at the snapshots to see if they produce a trend, wouldn't you? Have you gone

from zero to 36 in two days or is it just grumbling on? That's the sort of clinical

judgment you would want to make, isn't it? 10

DR TOBIN: I hadn't considered that, but - - -

MR BEASLEY: The answer to that has to be “yes”, doesn’t it, Doctor? If, as you

are, you’re placing some significance on the less than one per cent criteria, if you 15

examined the log and saw that nought .94 per cent was on a significant rise and you

know the ship is not coming in for about another day, it would occur to you, would it

not, that that figure at one per cent is going to be breached well and truly before the

ship docks and that would be a concern to you, wouldn't it?

20


COMMISSIONER: If I could throw in a phrase, would that have been ..... in all

likelihood?

25

DR TOBIN: Yes. I think it’s a reasonable assumption.

MR BEASLEY: You, of course, didn’t get the – there was – regrettably, there was a

log for whatever reason supplied the day after people got off the ship, that is, the 20th

of March, you would be aware of that now, correct? 30

DR TOBIN: Yes.

MR BEASLEY: Can I ask you this. That log has 48 people with ILI and something

like 124 with an ARI, which in percentage terms, I think, is about 3.3 per cent with 35

ARI and 1.26 per cent with an ILI. Had you known that at 1 pm on the 18th of

March, for example, if they were the figures presented to you at 1 pm on the 18th of

March, leaving aside the fact that you’ve suggested you would view this ship now as

medium – for perhaps a slightly different reason – had you have – even in your state

of mind that you had at 1 pm on the 18th of March, been presented with a risk 40

assessment form that said 1.26 for ILI and 3.3 per cent or whatever for ARI, would

you have reached a different view, do you think, about low risk and medium risk and

high risk?

DR TOBIN: I think I would've. 45

MR BEASLEY: What view would you have taken then?


MR BEASLEY SC

DR TOBIN: That it would be a medium risk.

MR BEASLEY: Right. All right.

COMMISSIONER: Are you moving away from the screening template? 5

MR BEASLEY: I am not - - -

COMMISSIONER: All right. That's all right.

10

MR BEASLEY: - - - at all yet, but I wanted to come – approach it from a slightly

different perspective by asking the witness to have a look at a different paragraph of

his statement, but it’s still in the context of the risk assessment form. I just want for

you to – if you wouldn't mind, going to paragraph 98 of your statement, where

you’ve said that you now believe it should've been classified as a medium risk 15

assessment. At 98,you said:

On reflection –

have you got that paragraph? Sorry. 20

DR TOBIN: Yes.

MR BEASLEY: This is obviously with you now more in the front of your mind

considering the CDNA guidelines we went through of the 10th of March - - - 25

DR TOBIN: Yes.

MR BEASLEY: - - - and the changed epidemiological criteria. You’ve said you

now believe that the ship should've been classified as medium risk: 30

…because all persons with current respiratory symptoms on board satisfied the

suspect case definition as they were all international travellers. I consider the

ship was medium risk rather than high as there were no confirmed cases on

board or links to known confirmed cases. 35

Can I just take that up with you. First of all, looking at the pre-arrival risk

assessment form, we have at least on the form that you were asked to consider 104

people or 2.7 per cent of the passengers and crew with an acute respiratory illness,

correct? You see that? 40

DR TOBIN: Yes, yes.

MR BEASLEY: All right. And we know that that, first of all, fits within the current

clinical criteria for a suspect case of COVID-19, correct? 45

DR TOBIN: Probably, yes. If I had known the details.


MR BEASLEY SC

MR BEASLEY: Yes. And, equally, because all these passengers and crew have

been on a cruise from Australia to New Zealand – I should ask you here. Did you –

were you aware about the country of origin mix on this ship? By that, I mean, were

you made aware how many people were from a country other than Australia on the

cruise ship - - - 5

DR TOBIN: No.

MR BEASLEY: - - - in terms of passengers. So you weren't told there was over

500 people from the United States, for example? 10

DR TOBIN: No.

MR BEASLEY: Nearly 200 from the UK, 25 from Portugal and Spain? Those

details weren't made known to you? 15

DR TOBIN: No.

MR BEASLEY: All right. But, in any event, as the ship had travelled to New

Zealand, it had stopped at various ports where people would disembark and – I don't 20

know – went to cafes, went to restaurants, did tourist activities, then come back –

came back to Australia. Those 104 people also, as a result of their international

travel, fit within the epidemiological criteria by now of a suspect case of COVID-19?

DR TOBIN: Yes. 25

MR BEASLEY: All right. And you say that’s in part your reasoning why you

would go from a low risk to a medium risk assessment?

DR TOBIN: Yes. 30

MR BEASLEY: Can I just ask you to consider that by going back to the 19

February risk assessment document that we had a look at earlier that’s behind tab 18

and tab 20 of Annexure 29 – sorry, Exhibit 29. If I can ask you to go to the risk

assessment for high risk. You see the first bullet point, if we are – and we’ve 35

obviously been over this issue about what respiratory outbreak meant to you, but if

we are now applying this risk assessment as at the 18th of March and we’re dealing

with clinical criteria, then that – can I suggest to you that you would substitute at

least in terms of clinical criteria what the CDNA had defined as being a suspect case

of CDNA, that is, respiratory illness with or without fever? Do you accept that? 40

DR TOBIN: I think we had been fairly clear in our definition. I would.

MR BEASLEY: No doubt, and we’ve been over that for the 19th of February, but

we’re now at the 18th of March, correct? And the CDNA has said that the suspect 45

case definition of COVID is these two things, epidemiological criteria, international

travel within 14 days of onset of an illness, correct?


MR BEASLEY SC

DR TOBIN: Yes.

MR BEASLEY: Second criteria – clinical criteria, I'm sorry, fever or acute

respiratory illness with or without fever, correct?

5

DR TOBIN: Yes.

MR BEASLEY: So all 104 people that reported to the ship with an acute respiratory

illness now fit within the CDNA’s definition of a suspect case, correct?

10

DR TOBIN: Yes.

MR BEASLEY: Can I suggest to you that with any ship with 104 passengers and

crew on board or 2.7 per cent of the people on board who are suspect cases for

COVID-19, that ship could only have been assessed as high risk? 15

COMMISSIONER: As opposed to medium, Doctor.

DR TOBIN: Yes.

20

MR BEASLEY: First of all, I'm asking you whether you agree with that

proposition.

DR TOBIN: I certainly understand the logic. I don't think even given that, that I

would assess it as high risk. 25

MR BEASLEY: Can you explain to the Commissioner why, with 104 people on

board a ship that are suspect cases for COVID-19, you would assess that ship as

being anything other than high risk? Bearing in mind with medium risk, you are

letting people off the ship other than those that you are testing for COVID-19. So I 30

need you to explain to the Commissioner why with 104 people that are suspect cases

of COVID-19, you would do anything other, from a public health perspective, than

assess that as a high-risk ship?

DR TOBIN: The difference for me was I was – even with this, I still consider the 35

countries mentioned previously, particularly the top four but also the medium-risk

countries, as being increasing the risk and in the assessment, we understood that none

of those – the passengers and crew had any of those kinds of exposures, particularly

to China, South Korea, Iran, Italy or even the medium-risk countries, and that was

the distinction I made, I think. 40

MR BEASLEY: All right. Can we analyse that a little bit, that you’re obviously

placing weight on whether people have gone to – travelled to particular countries that

are of high risk. The CDNA, though, has obviously made a decision that the

epidemiological criteria for a suspect case of COVID-19 needs to be changed to all 45

international travellers, not travelled to specific countries, correct?


MR BEASLEY SC

DR TOBIN: Yes.

MR BEASLEY: This - - -

COMMISSIONER: I take it “travelled from specific countries”, not just “to specific 5

countries”, but “from”.

MR BEASLEY: Precisely. Any international travel at all.

COMMISSIONER: So someone from the United States to Australia. 10

MR BEASLEY: Yes. Equally, given that this is a cruise travelling to another

country and I know that New Zealand was not considered a high-risk country, but we

now have a disease that’s circulating amongst 170 countries and we have a cruise

ship that is docking at ports in New Zealand, where passengers are disembarking and 15

mingling with people who no doubt are primarily New Zealand residents, but we

have no idea where they have been, correct?

DR TOBIN: Yes.

20

MR BEASLEY: Do you really want – do you really want to tell the Commissioner

that in those circumstances and with, as I said, the 104 suspect cases of COVID-19

that you would still have assessed this as medium, not high, risk?

DR TOBIN: Yes. 25

MR BEASLEY: And do I take that answer to mean that in the same circumstances

again, you would make the same decision?

DR TOBIN: I think so. Yes. 30

MR BEASLEY: Because the logical implication of assessing this ship as medium

risk is that whilst the people that had – apart from the ambulance disembarkations,

the people who had swabs taken from them, consistently with the way the cruise ship

was dealt with on the 8th of March, would've been kept on board until – they weren't 35

even kept on board, were they, until - - -

MS FURNESS: I object to the question because of the reference to “consistently

with the 8th of March”, because there had been some significant changes between the

8th of March and the 18th and 19th of March. And so for a question to be based on 40

consistency in circumstances where there have been significant changes is, in my

submission, not fair.

COMMISSIONER: Your point is it’s tendentious?

45

MS FURNESS: I beg your pardon?


MR BEASLEY SC

COMMISSIONER: Your point is that it’s tendentious?

MS FURNESS: Not a word that I’ve ever used, Commissioner.

COMMISSIONER: I think that is your point, but you may have a point. 5

MR BEASLEY: The – there had been no change to the medium risk assessment

procedure that if people were assessed as well that they’re allowed to disembark the

ship, correct?

10

MS FURNESS: But there had been a change to what would happen once a person

disembarks the ship. There was a requirement as to what should occur to those

people and there wasn’t that requirement on the 8th of March so the - - -

MR BEASLEY: We know about self-isolation, but that’s not quite - - - 15

COMMISSIONER: Yes. We’re talking about self-isolation. Yes. I'm sure the

doctor by now is aware that I’m also interested in something else, which is enforced

quarantine.

20

MR BEASLEY: Yes, yes. But - - -

COMMISSIONER: As opposed to self-isolation.

MR BEASLEY: All right. The fact – with self-isolation, the fact that people had to 25

self-isolate for 14 days when they got off the ship is something that you considered

in your decision-making for risk assessment?

DR TOBIN: It was not a factor in the risk assessment, but it certainly provided us

with the reassurance - - - 30

MR BEASLEY: And that reassurance, though, is based on these things, isn't it, first

of all, that everyone obeys being told to self-isolate for 14 days, correct?

DR TOBIN: It was a public health order and I think they would be committing a 35

crime if they didn’t obey.

MR BEASLEY: The fact is that many people did disobey that order, but that

disobedience of a self-isolation request is something you’ve got to factor in into your

- - - 40

MS FURNESS: Well, I object. It wasn’t a request. It was an order.

COMMISSIONER: Yes.

45

MR BEASLEY: Into your risk assessment.


MR BEASLEY SC

COMMISSIONER: Can we just shorten this in this regard. You’ve always taken

the view that in terms of the rigour of preventive action, forcible quarantine is very

considerably superior to self-isolation, even though the latter is sanctioned by a

regulatory offence. Is that right? Quarantine – forcible quarantine, such as in hotels

under guard, is regarded from public health terms as more rigorous and protective. 5

Correct?

DR TOBIN: Yes.

COMMISSIONER: And that’s because, lo and behold, we aren’t always as law-10

abiding as might be desired to be when people are not watching us. Correct?

DR TOBIN: Yes.

COMMISSIONER: If you’re self-isolating, only watching yourself, subject to your 15

nosy neighbours. Is that right? That’s the problem. Compared to people in battle

dress outside the door. That’s why people in your position supported going to

forcible quarantine, isn’t it?

DR TOBIN: With the evolving pandemic and - - - 20

COMMISSIONER: Yes.

DR TOBIN: And - - -

25

COMMISSIONER: As the risk got more serious - - -

DR TOBIN: Yes.

COMMISSIONER: - - - in your perception. 30

DR TOBIN: Yes. I think, taking those what I would describe as more draconian

measures, which are, say, more effective and became more justified, I think.


MR BEASLEY: Doctor, it’s also – apart from the self-isolation, you have to

consider, don’t you, that before people go into self-isolation, first of all, they’ve got

to get off the ship and they’ve got to get home. Correct?

40

DR TOBIN: Yes.

MR BEASLEY: And they might have to get home by travelling amongst a lot of

other people. Correct?

45

DR TOBIN: Yes.


MR BEASLEY SC

MR BEASLEY: They might take a bus, for example, to the airport. Correct? They

might take a plane. Correct?

COMMISSIONER: The forcible quarantine we’re talking about is with supervised

– that is, properly protected transport, isn’t it. 5

DR TOBIN: Yes.

COMMISSIONER: Which again is considered, for fairly obvious public health

reasons, with infectious diseases, a superior method of protecting the community. Is 10

that correct?

DR TOBIN: Yes.

MR BEASLEY: Having assessed the ship as low risk, the passengers were allowed 15

to disembark and go home, but they were still ordered to have this period of self-

isolation for 14 days. Correct?

DR TOBIN: Yes.

20

MR BEASLEY: If you assessed it as medium risk, and everyone gets off for their

self-isolation, other than those swabbed, there wouldn’t have been any different

outcome, would there, in relation to the spread of this disease, whether you made a

low risk assessment or a medium risk assessment for this ship. Correct?

25

DR TOBIN: I think there would possibly be different ways of managing the people

who had been identified as symptomatic and were being tested. And – so how they

were managed – and they were a higher risk group – and so they would be in

isolation until the results came back. And I think they would be managed differently

to the people who were without symptoms. 30

MR BEASLEY: I don’t understand that answer. For the – for what actually

happened with this ship on the 19th of March, 2700-odd passengers were allowed to

leave the ship. And 24 hours later, it was discovered that some of the swabs were

positive for COVID-19 and various steps happened there. On – if you assess this 35

ship as medium risk, 2700 passengers minus about nine get off the ship at the same

time as they did on the low risk. How is there a different outcome?

DR TOBIN: I think every dockside health assessment was slightly different and

was informed by and led by a human biosecurity officer. And – so I can’t exactly 40

tell you what would have happened if it had been a medium risk. But certainly there

would have been a call out for other people and – to make sure that if there hadn’t

been anyone identified already, that they present and so that that number may have

well risen. And so identifying people who were symptomatic but hadn’t been

identified. You could move them out of the cohort of people leaving the ship. And I 45

think that would have made a significant difference.


MR BEASLEY SC

COMMISSIONER: I’m sorry, doctor. It’s getting late and I may not understand. I

can’t see much connection of that last answer with what the protocol says about

medium risk – what would happen if you assessed at medium risk. You seem to

have described a different approach.

5

DR TOBIN: I think the health assessment team who meets a ship with medium risk

and both – would like to see the people already identified with – who are unwell with

symptoms and assist, but I think as part of the protocol there is a call out for any

other passengers to present who have symptoms who may not have presented so far.

So there may have been people reluctant to go and see the doctor, but they would be 10

encouraged to present to the health assessment team. I don’t know how many people

that would be, but that would be one difference, I suppose.

COMMISSIONER: But meantime, people who don’t respond to that call out and

were not already swabbed, would be let off the ship, I think Mr Beasley is asking. 15

DR TOBIN: Yes.

COMMISSIONER: Isn’t that right?

20

DR TOBIN: Yes.

COMMISSIONER: And if lots of people responded to the call out who have not

previously responded, it might call into question whether it’s still medium risk, rather

than high. Isn’t that right? 25


COMMISSIONER: Which might happen with a steep trajectory, if increase in

infections. 30

DR TOBIN: Yes. And with the assessment team, it’s my understanding that they

would want to do the assessment before granting pratique for the rest of the

passengers, not necessarily to get - - -

35

COMMISSIONER: Is that – is that what we would find in the procedure, that there

– that no one would be let off?

DR TOBIN: I think it’s – the – perhaps I should refer to the procedure.

40

COMMISSIONER: Yes, please do.

MS FURNESS: Tab 18.

COMMISSIONER: And that’s the same as 20, isn’t it. 45

MR BEASLEY: Yes.


MR BEASLEY SC

MS FURNESS: It is the same as 20.

COMMISSIONER: Yes.

MS FURNESS: It’s the bottom of - - - 5

COMMISSIONER: Yes. No. I know. Yes.

DR TOBIN: The final dot points.

10

COMMISSIONER: Yes. So risk assessment, medium risk.

Assessment team will meet the ship. It will review passengers and crew who

report fever –

15

and I think that must mean “or respiratory symptoms”. Is that correct?

DR TOBIN: Yes. It certainly should.

COMMISSIONER: Did you see where I was reading from? 20

MS FURNESS: It’s the next page.

DR TOBIN: Fever – sorry, should - - -

25

MS FURNESS: It’s under “medium risk”.

COMMISSIONER: Medium - - -

DR TOBIN: Yes. 30

COMMISSIONER: That – that “of” - - -

DR TOBIN: Should be “or”. Sorry.

35

COMMISSIONER: - - - should be “or” and everyone would read it so. Is that

correct?

DR TOBIN: Yes.

40

COMMISSIONER: That’s including yourself. Yes. Right. So they will review

passengers and crew who report fever or respiratory symptoms or who visited a

country including in those epidemiological criteria 14 days before embarkation.

DR TOBIN: Yes. 45

COMMISSIONER: All right.


MR BEASLEY SC

DR TOBIN: And prior – prior to the ship disembarking.

COMMISSIONER: So that – but those are the people you would review. Right.

And that seems to be – I don’t know whether this is deliberate or not, but that seems

to be even somebody without fever or respiratory symptoms, who nonetheless has 5

flown in less than a fortnight before embarkation, from one of those countries, would

need to be reviewed by the assessment team. Is that correct?

DR TOBIN: Yes.

10

COMMISSIONER: Thank you. Now, the last dot item, talking about providing

clearance for other passengers and crew who are well to disembark – are you

suggesting that that would not occur until all COVID-19 swabs had been tested?

DR TOBIN: No. No. 15

COMMISSIONER: So although it’s last in the dot items, as I understand it, it’s

actually describing something which would commence simultaneously with the

assessment of those who were requiring to be assessed. Isn’t that right? Or not?

20

DR TOBIN: I – I think it was at the end of the assessment, prior to any results

coming back, but at the end of the assessment. The attending human biosecurity

officer would – would or would not grant pratique. So if there was some other

information that came to light during that assessment, that raised their level of

concern, they may not grant pratique to the other passengers, the well passengers. 25

MS FURNESS: Commissioner, I think that you’re at cross-purposes with the

witness.

COMMISSIONER: Probably. 30

MS FURNESS: At the bottom of page – mine has “2030” on the top, but where it

says “risk assessment medium risk” - - -


MS FURNESS: - - - the final dot point begins with “prior to the ship disembarking,

the assessment team will” – do what it does. So it makes it clear there that the

review by the assessment team takes place before anyone disembarking. And then

the assessment team does its work – over the next page. Samples are forwarded. 40

And then the assessment team provides clearance for other passengers and crew –

that is, those not swabbed.

COMMISSIONER: To – forward – samples forwarded, but not test results got

back. 45

DR TOBIN: Yes.


MR BEASLEY SC

MR BEASLEY: Which is the critical - - -

COMMISSIONER: That’s what I was asking. I thought that was what Mr Beasley

was focusing your attention on.

5

MR BEASLEY: It was.

DR TOBIN: Sorry.

COMMISSIONER: You wouldn’t know whether there was any confirmed COVID 10

aboard before most of the passengers were released into the community.

DR TOBIN: No.

COMMISSIONER: What is the point of that as a precaution? 15

DR TOBIN: Well, it’s the process of doing the assessment as it may identify other

issues of concern. And, for instance, someone from one of those high risk countries

who was symptomatic which would elevate the risk - - -

20

COMMISSIONER: So asymptomatic infection is, if I may say so, as a matter of

design of the protocol, not addressed by even the medium risk assessment. Is that

right?

DR TOBIN: No, no. 25

COMMISSIONER: Isn’t that a defect in the design? Use all the hindsight you’ve

got, Doctor. I’m asking you to use hindsight now.

DR TOBIN: Sure. 30

COMMISSIONER: Isn’t that a defect in the design?

DR TOBIN: I think it’s based on either a risk that accepts it and there’s no doubt no

risk. 35

COMMISSIONER: I actually thought you were talking about how to improve

procedures. You understand?

DR TOBIN: Sure. Yes. 40

COMMISSIONER: You use hindsight for that. All the best will in the world – and

let me assume the best state of art in the world, you come up with an approach and it

doesn’t work. The scientific method reconsiders whether the approach should be

changed, doesn’t it? 45

DR TOBIN: It does.


MR BEASLEY SC

COMMISSIONER: And isn’t that what we’re doing here?

DR TOBIN: And certainly one option is to test all asymptomatic people and - - -

COMMISSIONER: Yes. It is. 5

DR TOBIN: - - - but - - -

COMMISSIONER: It would have been quite cheap compared to what’s happened,

wouldn’t it? 10

DR TOBIN: Possibly, but it’s - - -

MR BEASLEY: But isn’t another option, Doctor, to keep people – all people on the

ship for a couple of hours until the test results for COVID-19 have been done. We’re 15

not talking Diamond Princess, of leaving people to get sick gradually for weeks. A

few hours to keep people on a ship until you know whether or not the swabs have

tested positive or not for COVID-19. Doesn’t that make more sense from a public

health perspective than allowing people to go off, pending those test results?

20

DR TOBIN: Well, I think at that stage it was unlikely to be available in a few hours

– the test results.

MR BEASLEY: I don’t think that’s right, Doctor, is it? Let’s say it’s five or six

hours they have to wait. Isn’t it still taking a precautionary approach to public health 25

if the situation is serious enough that a ship is assessed as medium risk and it’s

serious enough that people have been required to have swabs taken to see whether

they have this novel disease that, if you were going to test that, that you wait – you

delay disembarkation of the ship in its entirety until you have that result back,

because otherwise you’ve done what Dr Durrheim, I think, said, “The horse has 30

bolted”. Hasn’t the horse bolted if you’ve left people – let people off a ship and the

test result comes back positive?

DR TOBIN: Yes, I – I think that was always accepted as a – as a risk for the

medium risk category. 35

MR BEASLEY: Is that an acceptable risk to run?

COMMISSIONER: Why is that regarded as acceptable? That’s what we’re trying

to get at. 40

DR TOBIN: Sure.

COMMISSIONER: What’s the calculus that says that’s acceptable? Are you

weighing money against lives? I know that’s confronting, but that’s what we know 45

in retrospect. Was it money? Was money involved in this?


MR BEASLEY SC

DR TOBIN: I – I certainly wasn’t considering money and that - - -

COMMISSIONER: I’ve got no impression at all that you were concerned about

expenditures. I don’t mean you were cavalier about public money but I can’t in any

of your evidence that you thought that you shouldn’t do something you would 5

otherwise be inclined to do because it might cost the government some money. I

haven’t seen anybody saying that so far. So I can put that to one side. What else

should I understand as weighing against what Mr Beasley has put to you; why

wouldn’t you wait to find out whether there was confirmed COVID before deciding

what to do with people who, being asymptomatic, may nonetheless be presently 10

infected?

DR TOBIN: Certainly with the benefit of hindsight we – I may have done things

differently but I think one of the things that was weighing on our mind was the

impact on those thousand - - - 15

COMMISSIONER: Now, the impact - - -

DR TOBIN: Couple of thousand passengers - - -

20

COMMISSIONER: - - - is a spectrum. There’s the inconvenience: they’d like to

get home, which we all understand. And there is the risk to them of being infected in

those next few hours which is a real one, isn’t it? Isn’t it?

DR TOBIN: With – with medium risk that is – yes. 25

COMMISSIONER: so they could all be confined to their cabins, couldn’t they?

Not much fun but then neither is COVID-19.

DR TOBIN: Sure. 30

COMMISSIONER: Or there could have been an earlier consideration of quarantine

until you know what’s happening. Isn’t that right?

DR TOBIN: That’s – that’s certainly one – one possible option, yes. 35

COMMISSIONER: Why isn’t that, in retrospect, using all – the full amplitude of

hindsight – why isn’t that an obvious way to have dealt with this? We can put

money to one side. That doesn’t – that’s not an answer, I take it. The inconvenience

is not an answer. I mean, you wouldn’t say because somebody wants to get home, 40

“We’re going to find acceptable the risk that they’ll infect others in the community”.

We wouldn’t say that, would we?

DR TOBIN: I – I think it is based on – on the risk assessment at the time, in the

same way that the risk assessment for the country changed and we moved to that – 45

the policy of compulsory hotel quarantine.


MR BEASLEY SC

COMMISSIONER: The risk assessment to the country was such that cruising was

stopping.

DR TOBIN: Well, the - - -

5

COMMISSIONER: These were the leftovers from those already out. The risk

assessment had already said, “We don’t want cruise passengers coming into port or

leaving port”. We’d already said that.

DR TOBIN: Sure. 10

COMMISSIONER: So I’m not getting why you say that wouldn’t support

quarantine for this ship.

DR TOBIN: Just at that time? 15

COMMISSIONER: At that time. With everything you know about this ship, why

not full quarantine for everyone?

DR TOBIN: I – I think you could make a – a similar argument for international 20

travellers coming by airport - - -

COMMISSIONER: I agree.

DR TOBIN: - - - which we weren’t doing at the time so I - - - 25

COMMISSIONER: Well, that - - -

DR TOBIN: I think what we were doing was consistent with what we were doing

for - - - 30

COMMISSIONER: I don’t have a remit that asks me to assume that we were

handling aviation arrivals appropriately, but I’m not – I don’t have the time or

inclination to investigate that as well.

35

DR TOBIN: But certainly in retrospect and given the way that it – it continued to

progress in Australia and around the world, and making those – those changes earlier

is – I think we will all have liked to have done that, but we were informed by the best

evidence we had at the time. And – and it changed very quickly.

40

MR BEASLEY: Can I ask you about the best evidence because there’s something I

forgot to ask you to consider, based on one of your answers. But before I get there, I

am sorry to press you on this - - -

COMMISSIONER: I’m troubled by the time, by the way. 45

MR BEASLEY: I know. I’ve got an eye on it. Thank you, Commissioner.


MR BEASLEY SC

In relation to what you now say would have been a medium risk assessment despite

104 suspect cases of COVID on the ship – and I understand what you’ve said your

reasoning is, why it would have been medium and not high – did you consider, in

making that assessment, the experiences of the Diamond Princess and the Grand

Princess where COVID had gone right through ships – cruise ships, as examples of 5

what can happen in relation to this disease spreading on the ship? Was that in your

mind at the time? Or in the mind you did your statement saying medium risk?

DR TOBIN: I – I was certainly aware of that. And I think the – certainly, for the

Diamond Princess, circumstances were a little different in that they had a higher 10

level of risk based on the – the confirmed case had been a passenger.

COMMISSIONER: Using retrospect, if the people – the unfortunate people on the

Diamond Princess had been taken off the ship and quarantined, they wouldn’t be

quarantined in one warehouse all together. They would be in their separate cells, by 15

which I mean enclosed rooms, wouldn’t they?

DR TOBIN: Yes.

COMMISSIONER: Both in terms of ventilation and artificial circulation of air, all 20

calculated – and I’m sure it would have been, say, in Japan - to have been healthier

for them than remaining on the ship. Correct?

DR TOBIN: Yes.

25

COMMISSIONER: And in retrospect, even before this Ruby Princess last arrival,

people were already thinking, with the Diamond Princess, how much better it would

have been had they been taken off the ship and looked after in quarantine. And the

community – the Japanese community – protected against whatever they may be

harbouring by them being kept in quarantine. Isn’t that right? That was a consensus 30

view, wasn’t it, that the - - -

DR TOBIN: Yes.

COMMISSIONER: - - - Diamond Princess had been a disaster because she had kept 35

people in close quarters as if you wanted to breathe the microorganism?

DR TOBIN: I think that would be one consideration perhaps in the medium risk

assessment, where you might not want to keep people on board because of that risk.

40

COMMISSIONER: But what I'm saying is that Mr Beasley was putting to you, this

seems to be a false choice that you either keep them on board infecting each other, if

you think too many will disobey orders to stay within their cabin, or you are

releasing them, again with the hope that they will self-isolate, because there’s an

obvious thing in the middle that we’ve all gone to later, which is good, old-fashioned 45

forcible quarantine; isn't that right?


MR BEASLEY SC

DR TOBIN: And that’s certainly what we had planned for a high risk scenario

when - - -

COMMISSIONER: Well, is that right? Is that what that document says about high

risk? 5

DR TOBIN: In our response procedures, I think we flagged that.

COMMISSIONER: Well, I may be misreading it, but where do I find quarantine

there for high risk? 10

DR TOBIN: Not so much in the pre-arrival assessment, but in the document that

was mentioned briefly at the - - -

COMMISSIONER: Well, no. I know it’s called pre-arrival, but it actually 15

stipulates what’s going to happen after arrival, doesn’t it?

DR TOBIN: Well, I think for high risk, certainly, it flags that there needs to be an

urgent assessment, but it doesn’t go into much of the details of what would happen

and that’s - - - 20

COMMISSIONER: Well, it talks about moving to home quarantine.

MR BEASLEY: The witness is right, Commissioner. There was an updated

procedure set out in the 9 March enhanced procedures. Before we - - - 25

COMMISSIONER: I think we’re looking at different documents altogether.

DR TOBIN: Sorry.

30

MR BEASLEY: Before we get to that, though, there’s an important matter and,

again, I apologise for pressing you on this medium versus high risk assessment, but

one of the things you told me that I didn’t realise – in fact, I wasn’t completely sure

until yesterday that you didn’t get the diseases log, but through some of my

questioning today, you’ve indicated you weren't aware of the country of origin 35

makeup of this particular ship, correct?

DR TOBIN: Yes.

MR BEASLEY: Can I just ask you to go back to – and this should've been 40

tendered, but the epidemiologic – the epi report. Thank you. It is late. Number 7,

14 March. And can you go to page 2 of 17 of that. Do you have that where it has

got, “In Australia, 295 COVID cases”?

DR TOBIN: Yes. 45


MR BEASLEY SC

MR BEASLEY: You see of reported recent overseas travel history, number 1, 22

per cent have a direct link to the USA? Do you see that?

DR TOBIN: Yes.

5

MR BEASLEY: Would it have made a difference to either your low risk assessment

on the 18th of March or your medium risk assessment for the purposes of your

statement if you knew that there were nearly 600 residents of the United States on the

ship?

10

DR TOBIN: I think that CDNA were taking this data into account when they were

assigning their countries medium and high risk, and I think data like this is probably

what pushed them to broaden the categories to all international travel.

MR BEASLEY: It may well be, but I'm asking you a different question. I'm asking 15

you if you could assume that you were told that there were nearly 600 people on the

ship from the United States and nearly 200 or 191, to be precise, from the United

Kingdom and a passenger makeup from 24 different countries, but focusing

particularly on the United States and the United Kingdom, and we have this

document saying that of the 295 COVID cases in Australia, 22 per cent have a direct 20

link to the United States. Do you see that?

DR TOBIN: Yes.

MR BEASLEY: Would that have made, first of all, a difference to your low risk 25

assessment on the 18th of March if you had known that? Let me break it up.

DR TOBIN: Yes.

MR BEASLEY: It would have been relevant, would it not, to your assessment to 30

know that there were nearly 600 people on this ship from a country that is causing a

reasonably high risk for COVID cases in Australia, 22 per cent?

DR TOBIN: I think for the – the first assessment and the numbers may have been

different at the time of – on the 8th of March, but - - - 35

MR BEASLEY: Dealing with the second one - - -

COMMISSIONER: I'm asking about the second assessment, please.

40

DR TOBIN: The second one. I think during our assessment, we - - -

MR BEASLEY: No. I’m – Doctor, really, you’ve got to focus on the question. I'm

asking you - - -

45

DR TOBIN: Yes.


MR BEASLEY SC

MR BEASLEY: - - - what you would’ve done. For the moment, I'm not interested

in what Prof Ferson or anyone else would have assessed this ship. Just you. What

I'm asking you is, that if you had all the information you had, but let’s put in two

factors, you had the log showing a rising spike in ILI and ARI and you had been told

that there were 600 people on this ship or thereabouts from the USA and 200 from 5

the UK and you had this knowledge about reported overseas travel history and links

to COVID cases in Australia, first of all, that would have been relevant information,

correct?

DR TOBIN: Yes. 10

MR BEASLEY: Yes. Would it have made a difference to your assessment of low

risk firstly, do you think?

DR TOBIN: I don't think so. 15


DR TOBIN: I'm not sure.

20

MR BEASLEY: Would it have made – does it make any difference to you having

assessed now a ship of 104 – with the 104 suspect cases of COVID on it as medium

risk, would it influence you to assess it as high risk if you knew that there were 590-

odd passengers on the ship from the United States and 190-odd from the United

Kingdom? 25

DR TOBIN: No.

MR BEASLEY: Why?

30

DR TOBIN: I think even given that and, certainly, we were monitoring the reports

out of the United States and the United Kingdom, I don't think that would've tipped

them into the high risk category.

MR BEASLEY: Don't worry about tipping them into a high risk category. Would it 35

have made you – you’re saying you don't think that that would've caused you to

assess this ship as being high risk as distinct from medium risk, even with that

knowledge?

DR TOBIN: Yes. 40

MR BEASLEY: All right. Commissioner, I have a difficulty and - - -

COMMISSIONER: Yes. I know.

45


MR BEASLEY SC

MR BEASLEY: - - - I'm not quite finished. I won’t be much longer with this

witness, but I can’t finish today and I think there’s other people ..... want to ask some

questions as well, so we wouldn't finish until quarter past 4 in any event.

COMMISSIONER: No. It will be stood over until tomorrow morning. 5

MR BEASLEY: So can we adjourn till 9.30?

COMMISSIONER: Yes.

10


COMMISSIONER: Doctor, thank you for your assistance today. I really do

appreciate it, but I'm sorry. I'm not showing my gratitude as I might like to have.

You have to come back tomorrow. Thank you. We will adjourn till 9.30 tomorrow. 15

<WITNESS STOOD DOWN [3.53 pm]

20

MATTER ADJOURNED at 3.53 pm UNTIL WEDNESDAY, 10 JUNE 2020


Index of Witness Events

SEAN TOBIN, AFFIRMED P-907

EXAMINATION-IN-CHIEF BY MR BEASLEY SC P-907

WITNESS STOOD DOWN P-1050

Index of Exhibits and MFIs

EXHIBIT #28 STATEMENT OF SEAN TOBIN DATED 29 MAY

2020

P-908

EXHIBIT #29 ANNEXURES TO NSW HEALTH WITNESS

STATEMENTS

P-908

transcript of proceedings · .ruby princess inquiry 9.6.20r1 p-907 s. tobin xn mr beasley sc until...

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