Bills – Public Governance, Performance and Accountability Amendment (Vaccine Indemnity) Bill 2023 – Second Reading

Senator BABET (Victoria—United Australia Party Whip) (09:02): I would like to acknowledge the people of Australia whom we in this place are elected to represent to the best of our abilities. To a large extent their health and welfare rests in our hands. We must serve them first and rise above the influence of powerful corporate agendas. That’s what we must do.

Today, I introduce to this place a bill that truly serves all Australians. This bill is titled the Public Governance, Performance and Accountability Amendment (Vaccine Indemnity) Bill 2023.

This is a bill that I should not have to introduce.

This bill, if passed by those in this place, will ensure that no future indemnities are granted by the Commonwealth to the manufacturers of vaccines in relation to the use of said vaccines.

This bill will limit financial and legal risk to the Commonwealth and aid in the restoration of trust in medicine.

Over recent years, our elected members have unfortunately undermined the trust of many citizens.

Secret deals have been done with pharmaceutical companies. We don’t know the details of these deals because unfortunately transparency does not exist.

What we do know is that a key part of the contracts signed with these big pharmaceutical companies was an indemnity clause.

The Oxford dictionary defines indemnity as ‘protection against damage or loss, especially in the form of a promise to pay for any damage or loss that happens’.

I guess it’s easier to sign a blank cheque when you know it’s ‘only’ taxpayer money that is at stake. This is nothing short of a betrayal.

The federal budget for 2023-24 contains multiple ‘unquantifiable contingent liabilities’ relating to vaccines. The unquantifiable liability stems from the fact that indemnity has been granted for the advance purchasing agreements for COVID-19 vaccines.

‘It was a pandemic; we had no other choice’—that’s what they will say.

But, before the Australian people accept this excuse, just hear me out for a second.

The potential liability doesn’t end here. According to the 2023-24 budget papers, indemnity has also been granted in advance to a manufacturer of a smallpox and monkey pox vaccine and a particular manufacture of pandemic and pre-pandemic influenza vaccines.

This bill, as designed, does not impinge on existing contracts, but the issue of retrospectivity is something that we should investigate further should this bill be referred to committee.

Now a precedent has been set, the pharmaceutical industry has a taste of your money and they will not stop demanding indemnity unless we in this place say, ‘Enough!’

Indemnification has created an incentive for risk taking in the pharmaceutical industry, which is not aligned with the fundamental principles of medicine.

Where indemnity exists, it is human nature to take larger risks, whether consciously or subconsciously. The outcomes will always be poor.

Companies work for shareholders first and it is profits that motivate their decisions and their actions.

Our nation has granted indemnity to a pharmaceutical company that is famous for setting a world record.

Unfortunately, it is not the kind of record that one would boast about.

In 2009, Pfizer forked out US$2.3 billion for illegal promotion and false and misleading claims about drug safety and in paying kickbacks to doctors.

This included the largest ever US criminal fine at US$1.2 billion. Pfizer was also connected to the death and permanent disability of children who participated in a critical trial in Nigeria.

We also granted indemnity to Moderna, a company which has been trading for 10 years but until the COVID-19 vaccine had never achieved a single product approval.

Contracts known to include indemnity clauses with pharmaceutical companies have been requested by the Australian Senate as recently as 22 November, but unfortunately the government voted against public disclosure of these critical documents.

The unjustified suppression of contracts in the public interest is another key driver of this important bill.

Transparency builds trust. How can the Australian people trust their government in the absence of transparency? The only solution to ensure accountability is passing this bill.

Accountability is, after all, a cornerstone of our society.

Businesses that produce goods or provide services are expected to be accountable for any adverse or unintended consequences of their products or services. When a product is faulty, for instance, it is replaced. When a service is inferior, a refund is provided.

Unfortunately, there are large and powerful entities in the pharmaceutical industry that have managed to evade accountability, and our federal government has willingly surrendered the Australian people’s right to financially hold them to account.

For a vaccine to be available in Australia it must be approved by the Therapeutic Goods Administration.

The main process for distributing vaccines in Australia is through the National Immunisation Program (NIP).

Section 9B of the National Health Act 1953 allows the minister for health to provide or arrange for the provision of vaccines for distribution through the NIP.

Vaccines distributed via the NIP must all be listed on the PBS.

The purchase of vaccines occurs through the Commonwealth entering into supply arrangements (aka contracts) with the relevant pharmaceutical companies.

These arrangements would include the amount of compensation the Commonwealth is liable to pay in exchange for the vaccines and are generally subject to Commonwealth procurement rules.

The process for the purchasing of the COVID-19 vaccines varied from the normal process for purchasing vaccines for distribution through the NIP.

While the Commonwealth government has previously provided indemnities for vaccine manufacturers, this only appears to have occurred in limited circumstances.

Indemnities provided to vaccine manufacturers and sponsors became more commonplace during and post the COVID-19 pandemic, but very little is known by the general population about the specifics of said indemnities as the contracts between government and corporations have been protected as ‘commercial-in-confidence’.

When transparency and accountability measures are removed from government contracts a threat emerges and the likelihood of errors, omissions and nefarious actions emerge. The trust in both medicine and government is threatened by the weakening of accountability measures.

The Public Governance, Performance and Accountability Act 2013 enables the finance minister, or their delegate, to grant indemnities on behalf of the Commonwealth.

Indemnities given by the Commonwealth create contingent liabilities. In other words they may give rise to a liability on the occurrence of a future event.

To achieve its objective, this bill amends the Public Governance, Performance and Accountability Act 2013.

That act establishes the framework for government financial accountability arrangements and includes provisions enabling the finance minister or their delegate to grant indemnities on behalf of the Commonwealth. This bill inserts a new section 61A into the PGPA Act.

To my colleagues in this chamber, I want you to think for a second and consider this in your personal life.

Let’s just say that you’re negotiating with a builder to construct a new home for your family. You complete your plans, specifications and selections of your floor coverings, doorknobs, and taps et cetera.

The time comes to sign the build contract. You read through the contract and it all seems fine, but then you get to the term sheet and you see the total cost for your new home. You don’t see a number; you see a word, ‘unquantifiable’. How many of you would sign that contract? Probably not many, if any.

Unfortunately, the same cannot be said when you are signing a contract on behalf of Australian taxpayers. You are more than willing to write a blank cheque on behalf of other people, but you would not do it yourself.

That is why I have put up this bill. I urge you to support it. I urge you to treat taxpayer money the same way that you would treat your own.

Our state and its elected representatives appear to have been captured and it’s an ongoing problem.

This bill serves multiple purposes. It’s not just the limiting of financial and legal risks to the Commonwealth.

As a good global citizen, it is also worth noting the potential for state capture that arises because of indemnity clauses in vaccine contracts.

Published in the Journal of Pharmaceutical Policy and Practice is a research paper titled: ‘State capture through indemnification demands? Effects on equity in the global distribution of COVID-19 vaccines.’

This paper concludes that COVID-19 vaccine manufacturers indemnification demands constitute state capture in many low and middle-income countries.

In global pandemics, pharmaceutical companies can exert their power and coerce nations to shift their laws or policies away from the public good and towards the demands of pharmaceutical companies.

Wealthy nations, like Australia, are more capable of meeting the indemnification demands of private companies, resulting in delayed access to vaccines for lower income nations.

Indemnification has also had the unintended consequence of enhancing global vaccine inequities.

The fact is that the COVID-19 vaccines were rolled out with the support of an indemnity clause. These vaccines have unfortunately resulted in over 139,000 adverse event reports and some people have died.

Based on the recent Western Australian data from 2021, the COVID-19 vaccines had an adverse event reporting rate that is 23 times greater per dose than non-COVID-19 vaccines.

There were 264 adverse events per 100,000 doses, when compared to just 11 for non-COVID-19 vaccines.

This is unacceptable, and big pharmaceutical companies appear to be unaccountable and, quite frankly, a little bit untouchable at the moment.

This bill has been drafted in a very reasonable manner.

It honours existing commercial contracts—we cannot undo the past.

What we can do is ensure that the mistakes of the past are never repeated.

We must draw a line in the sand and regain our sovereignty over vaccine contracts.

The question of whether this bill is supported, or not, will be a test of those in this place. Do you represent the people of Australia, or will you in my opinion sell out to the big pharmaceutical companies?

Support this bill and help me in restoring our nation’s trust in medicine and holding these giant global corporations to account.