SOUTH AUSTRALIAN PUBLIC HEALTH BILL

Final Stages

Consideration in committee of the Legislative Council's amendments.

The Hon. J.D. HILL: The other place has returned the Public Health Bill 2010 to this house with six amendments. I advise the house that we will accept most of these amendments, as we believe they either improve the bill or simply restate already existing provisions, but in a way that the other place considers clearer. However, we will oppose two amendments because we believe they will create significant difficulties during the critical period of responding to declared public health emergencies.

I indicate if the other place persists with those two amendments that I referred to, we will be seeking to create a deadlock conference, but I understand that procedures would mean that it would have to go to the other place and then be rejected again, and then come back here. I have not actually done this as a minister, so I am in interesting territory, but I am optimistic that the other place will see the light and all will be well. So I do indicate that we are accepting four of those.

Amendment No. 1:

The Hon. J.D. HILL: I move:

That the Legislative Council's amendment No. 1 be agreed to.

I indicate that we will accept No. 1, and the explanation I have is that this inserts a further principle providing for the consideration of a person's conscientious objection to a medical treatment for themselves or a child for whom they are parent or a guardian. In accepting it, I indicate that this amendment inserts a further principle into clause 14 to offer additional guidance to those exercising powers and making decisions under parts 10 and 11 of the bill.

In particular, it offers guidance concerning the conscientious objections of persons where the possibility of compulsory treatment is judged to be necessary. Whilst the government's position is that this issue is covered by the principles already contained within clause 14, we are of course willing to support this amendment, if it is the will of the council, so as to put the matter beyond doubt.

Dr McFETRIDGE: This is an extremely important piece of legislation. It is important that we get it right, and if you want evidence of that, just ask Minister Portolesi about her experiences, and we wish her and her staff well. I understand they are extremely ill, Minister Portolesi in Singapore and her staff still in India. So, public health in South Australia is very important, and we need to get it right. I thank the government for supporting amendment No. 1.

Motion carried.

Amendment No. 2:

The Hon. J.D. HILL: I move:

That the Legislative Council's amendment No. 2 be agreed to.

I indicate that we support this amendment, which seeks to describe a broad set of conditions that are meant to apply to those circumstances where individuals are detained or isolated under the provisions of parts 10 and 11 of the bill. We accept this amendment because it provides further clarity about what must be considered to be provided to a person or persons who are the subject of an order, direction or requirement under part 10 or part 11 of the bill.

In relation to subclause (f) of this amendment, it makes the particular requirement to ensure that needs such as food and medical treatment, amongst other things, are provided, especially where a person, who may be under some restriction, is unable to cater to their own needs.

Dr McFETRIDGE: On behalf of the Hon. Ms Bressington, who moved this amendment in the other place, with the cooperation of the shadow attorney-general in the other place, we thank the government for its support.

Motion carried.

Amendment No. 3:

The Hon. J.D. HILL: I move:

That the Legislative Council's amendment No. 3 be agreed to.

Once again, I indicate the government's support for amendment No. 3. The amendment adds to the already wide-ranging set of principles that guide decision-making in the exercise of powers under part 10, which deals with controlled notifiable conditions, and under part 11, which deals with the management of significant emergencies.

Clause 14 already reflects a requirement to provide an appropriate balance between the protection of individual rights and the rights of the public at large to protection. This requirement flows from our obligation under the World Health Organisation's International Health Regulations 2005. This amendment restates these requirements in a slightly different way, but we believe it is sufficiently useful to help guide public health officials when they use these provisions.

Motion carried.

Amendment No. 4:

The Hon. J.D. HILL: I move:

That the Legislative Council's amendment No. 4 be disagreed to.

I indicate that this clause is the first of the clauses which we are not supporting, and I will just go through the reasons for that, if I may, and explain what they are. First, this amendment imposes conditions on the use of emergency powers during an emergency and imposes appeal provisions within 24 hours on directions to isolate or segregate during an emergency.

We strongly oppose this amendment. I understand that public health officials, including the Local Government Association and senior police officials, have spent a considerable amount of time with members of the opposition and members in the other place to point out the risks to public health and safety that this amendment proposes.

Put simply, this amendment gets the balance wrong. We agree that it is important to ensure that the rights and liberty of the individual have limits when the community at large is threatened or may be exposed to harm by the actions of that individual. This is a basic assumption of any civil rights doctrine, that individual rights and liberties only apply to the extent that others are not harmed. Where an entire community is put at risk individual rights must be curtailed. This is recognised by the most ardent civil rights advocates, the fathers of small 'l' liberalism, John Locke in the 17^th century and John Stuart Mill in the 19^th century. The imposition of a restriction such as isolation and segregation or a direction to remain in a particular place during the time of a declared public health emergency is not done lightly. It would only be used for very serious public health risks; for example, the outbreak of a severe and highly contagious disease, with the potential for widespread infection and death.

I remind members in this place that only a few years ago we were very deeply worried about the potential of bird flu breaking out into the human community, and, of course, that risk has not abated, it still could do that. If that were to happen, hundreds and hundreds of thousands of Australians would be affected and we would need to exercise quite extraordinary powers to protect the majority.

Every year, I am advised, for the past 30 years, there have been new and potentially dangerous diseases emerging. Members may wish to consider the consequences of a school group from a country high school arriving back in our state from an excursion in Africa, for example. They clear customs and therefore leave the jurisdiction of the Australian Quarantine Service. It is only then identified that they had possibly been exposed to Ebola haemorrhagic fever, which has an incubation period of two to 21 days, so many of the students may be asymptomatic for up to three weeks. This is a highly virulent, highly contagious virus with high mortality. There is no treatment, there is no cure. It would be absolutely critical to isolate these students and all those in the community who came into contact with them to ensure that there was no risk of this highly dangerous condition breaking out into the wider community.

We must have the power to isolate them as well as to make sure that others do not try to have contact with them, except through safe and supervised means. In most circumstances, most people would be only too willing to comply with the strong advice of health workers, but we do not have the luxury of dealing with most circumstances. At times when our whole community is placed at risk, we have to have powers that deal with all circumstances. That is why we need clear and strong emergency powers.

We would try to manage this situation under part 10 (powers) in the first instance but, equally, it may be necessary, because of the high risk of spread, to invoke public health emergency powers under part 11. Given this scale, the possibility that the orders could be appealed will present a serious logistical problem for authorised officers who need to be deployed and totally focused on managing the outbreak and protecting the whole of the community.

It may be necessary in public health emergencies to restrict the movement of those who have been, or are likely to be, exposed to a disease to prevent the risk of infecting others. These are forms of quarantining which have been used by public health practitioners from the earliest of times. The emergency powers that were contained in the bill prior to the opposition's amendments are already in the current Public and Environmental Health Act of 1987, and they were inserted by this parliament as recently as 2009 in the face of deep concerns then about the swine flu epidemic.

I understand that the shadow attorney-general in another place has indicated that he is relying on the provisions in the Queensland Public Health Act of 2005 which in section 361 has appeal provisions during an emergency against detention orders imposed by an emergency officer (medical). The Queensland appeal provisions apply to detention only. Detention is a much higher level of restraint and restriction on a person's liberty where stronger measures of supervision and control are required. Queensland's emergency powers—which have similar effects to the provisions in this bill—relating to isolation, segregation and direction to remain in a certain place do not have appeal provisions. In fact, all other state and territories' equivalent legislation for dealing with emergencies and public health emergencies makes it very clear that these emergency powers do not have any specific appeal provisions. The reason for this is that they are dealing with emergency situations when the health and safety of wide sections of the community or, indeed, of the entire state may be at risk.

The powers of isolation, segregation and directions for people to remain in a certain place in a declared emergency may be applied to many persons or classes of persons which could run to hundreds—if not more—depending on the circumstances and severity of the emergency. The effect of this amendment opens the potential for courts to be inundated with a very large number of appeals. It would be at the court's discretion, of course, as to whether any appeal could be heard together. It would necessitate the diversion of vital public health resources to defend the orders at precisely the time when public health professionals and the health system generally may be stretched trying to manage and control the causes of the emergency.

The government's position is clear. In an emergency, it is vital that all of our resources are applied to containing, controlling and eliminating the threat to public health and safety. I do not want to see if we ever have one of these situations—and God help us that we do not—having public health officials trying to look after the public but being under risk at any time of having to go to court to defend decisions that they may have made, or second-guessing what a court might think of any particular action and then being hesitant about exercising their authority in a proper way. This would be an absolutely perilous situation in which to put them. They would be effectively having one arm tied behind their back.

As I say, the government's position is clear. In an emergency, it is vital that all of our resources are applied to containing, controlling and eliminating the threat to public health and safety. This is not just the government's view: it is common sense. The Local Government Association, whose members would be engaged in the management of an emergency as the local public health authority, has written to members expressing their strong concern and opposition to this amendment. I also have with me a letter dated 30 March this year from the acting commissioner of police at that time (Gary Burns) expressing in clear terms the dangers inherent in this amendment. I will seek permission later to table the letter. Acting commissioner Burns concludes his letter with these words:

In my opinion the proposal is unworkable in a significant emergency and, in my opinion, the risk that review and appeal processes may adversely affect community safety outweighs the need for the proposed amendment in this circumstance. In short, lost time can mean lost lives when dealing in critical emergency situations.

At this stage I table copies of the letters from the LGA and Gary Burns, acting commissioner at the time. I am sorry but I only have one copy of each. Neither the government nor public health officials want to avoid scrutiny over the exercise of these powers. The issue is that, during an emergency, it is the wrong time for the type of provision contained in this amendment to be exercised.

We have offered several alternative suggestions to the opposition about how a level of scrutiny, transparency and accountability can be attained and those offers are still on the table. I say to the member for Morphett, who I think understands this issue well, that we are open to trying to work this through because this is legislation which is not political: it is about trying to protect the citizens of our state. Who knows which party will be in government if and when it has to be used? I would not like to be the minister for health trying to deal with a significant emergency with these provisions in place. It would very much hamper our capacity to deal with it.

I suggest that, if they were in place, one of the first things we would do would be to call an emergency session of the parliament to ram through changes to allow us to get on with the job without these restrictions at a time when bringing people together to talk about things might be considered to be an unwise thing to do. I sincerely and seriously suggest to the members in the other place that they reconsider their support for this amendment and repeat again that we are very happy to try to seek a common ground so that civil rights protection can be given, but they have to be practical and in the context of what might be a very significant medical emergency.

Dr McFETRIDGE: I am not a lawyer, and by that I am certainly not apologising—I am boasting because I think lawyers can complicate many things, God bless them! I did train as a veterinarian and I did train in public health. At the Australian National Veterinary Association Conference later this month a full day is being put aside for emerging zoonotic diseases—in other words, diseases being transferred from animals to humans—and some of those diseases are catastrophic and highly virulent, with high morbidity and high mortality.

Under those circumstances, as the health minister, I would like to have the power to be able to control outbreaks of those sorts of diseases. However, my learned colleague the shadow attorney-general in the other place assures me that this amendment is not going to be too onerous and that the appeal process will not involve hundreds and hundreds of appeals. There will be one appeal test case and any other appeals would depend upon the outcome of that one test case.

I have listened carefully to what the minister has said. I certainly will pass on those comments to my colleague in the other place. He and I will be meeting in the next day or two to discuss the future of these amendments and any modifications because I know he wants this to be a very workable piece of legislation, with the intent that it will deliver the best outcome for all South Australians. As I have said, I will take note of what the minister has said, and I will show it to my colleague in another place. However, at this stage, the opposition is maintaining its support for amendment No. 4.

The Hon. J.D. HILL: I thank the member for the offer to consider this further; I appreciate that. Any assistance we can give him, we will. I will just say in relation to the notion of a test case, I am not sure that that would flow, but even if it were to flow, we know what people are like. Ninety-five to 99 per cent of people do the right thing always, but there will always be somebody who will want to challenge what the majority think is right and who will want to pursue a matter through the courts. There are all sorts of people who do this—sometimes vexatiously, sometimes not—in our community.

Even one test case could take up a considerable amount of time and, while it was ongoing, it would be difficult for officers to continue doing their work, I would have thought. However, let's suppose that, through some legal kind of means, that person was successful. What would we do then if swine flu or bird flu is out in the community and some magistrate or District Court officer or judge is sympathetic to a particular person's views and so the whole health system crashes to a halt and hundreds and hundreds of people end up catching the disease and dying? I know I am being perhaps a bit dramatic and a bit hypothetical, but all of this is about hypotheticals, and I think that is one hypothetical that needs to be considered because it could lead to a disastrous result.

We are mindful of civil liberties, and we are happy afterwards to have judges review the processes we all went through and publish reports in parliament about any excesses. I would even contemplate a compensation scheme if the process was misapplied, but not to have the power to act dramatically and quickly in an emergency would really constrain our public health officials at a time when we need them to be unconstrained. It is only a 14-day period, too. We are not talking about months or years; we are talking about 14 days. But I do thank the member for his comments.

Dr McFETRIDGE: Further to that and just to make sure the committee understands where I am coming from, my understanding is that, in the amendment that has been tabled, the making of an application does not suspend the operation of a direction. In other words, the person would be in isolation during the time it took the Magistrates Court or the District Court to look at that appeal. So, they would be isolated. The Magistrates Court must consider whether two or more applications by a separate individual may be joined or heard together. I understand exactly where the minister is coming from, and I am very sympathetic to his point of view. I will certainly talk to my colleagues in the other place to make sure that we can come to a practical solution because in many cases there is no second chance with this sort of issue.

Motion carried.

Amendment No. 5:

The Hon. J.D. HILL: I move:

That the Legislative Council's amendment No. 5 be agreed to.

This is an amendment moved by the Hon. Michelle Lensink in the other place. I indicate that the government supports this amendment. I am advised that this amendment has altered the review process from three to five years. The proposal to review is supported since it will be important to ensure that any legislation is operating as intended and that any unintended consequences are appropriately addressed. I thank the opposition for raising this issue; I certainly think it is a useful thing to do. I thank them for making it a five-year, rather than a three-year, review. I think that makes a lot of sense.

Dr McFETRIDGE: I think that the Public Health Act has been under review for 20 years, or something like that, and to have a review period set down in the legislation is a useful thing to do, particularly with the developments both in diseases and the ways in which those diseases are being spread. On behalf of the honourable member in the upper house, the Hon. Michelle Lensink, I thank the government for its support.

Motion carried.

Amendment No. 6:

The Hon. J.D. HILL: I move:

That the Legislative Council's amendment No. 6 be disagreed to.

Amendment No. 6 amends the Emergency Management Act 2004 and imposes appeal provisions within 24 hours on directions to isolate or segregate during an emergency if such an emergency was declared under the Public Health Act. This is an even more horrific amendment to our bill in the other place than the previous one which we opposed.

We are opposing it generally for the reasons canvassed in the previous amendment to which I referred. This amendment presents significant dangers to the capacity to protect public health in this state during an emergency. The effect of this amendment is that it moves clause 90 appeal rights for isolation and segregation from the Public Health Act to the Emergency Management Act 2004 should the public health emergent become so widespread that it requires the wider powers of a full declaration under the Emergency Management Act 2004.

For example, if there is an example of a more virulent form of a viral haemorrhagic fever-like illness and we have attempted to control it under the public health emergency provisions but the scope of the outbreak has impacted the community even more profoundly—for example, in a bird flu scenario.

In this situation the outbreak is affecting the social and economic functioning of the wider community, so thousands of people would not be going to work, the train system would stop working, buses would stop working, taxis would not be on the roads and shops would not be open. All those kinds of things would have happened. This may require wholesale closures of shopping centres, schools, businesses and other venues and require the making of orders on a widespread scale restricting the movement of people. In these circumstances we would have to mobilise the full resources of the government and community to protect the social and economic fabric of our state.

In these circumstances it would be highly likely that we would have to move to a declaration under the Emergency Management Act 2004 itself (and, as I understand it, that means that the police commissioner would move that way), and this amendment—if it went through—would place an extraordinary restriction on the police commissioner's powers but only in this kind of medically-derived emergency not in any other situation which might be similar.

I think that, apart from being kind of illogical that we would do that, it would create incredible problems if a health emergency was amplified in this way. The amendment, as I say, will place an extraordinary additional burden on already stressed public health officers and officials should a person or persons appeal any orders with both SA Police and the Local Government Association (and I have already mentioned they are extremely concerned about it). These appeals would be occurring at a time of maximum threat to the community. No other state or territory I am advised has appeal rights for similar orders made under the equivalent public health legislation let alone in the emergency management legislation. I have not sought advice from the police minister in relation to this, but I would have thought that, if the opposition and the other parties in the other place were to insist on this amendment, the whole bill would have to collapse because we cannot threaten the capacity of the police commissioner in a major social emergency with the provisions which are being proposed.

I sincerely appeal to the opposition between this and the other place to reconsider its position in relation to this in particular but also in relation to the other matter. As I say, we are happy to meet you halfway, we are happy to look at ways of ensuring that civil liberties are protected, but we also have to look out for the general public good at times of extreme emergency.

Dr McFETRIDGE: I will ensure that my colleagues in the other place are made aware of the minister's comments and views on this matter. I am sure that we will be able to come to a conclusion that will ensure that the bill does exactly what it is intended to do; that is, protect the health of South Australians.

The Hon. J.D. HILL: I thank the member very sincerely for those comments and indicate that that is the end of it. As I indicated before, we may have to have a deadlock conference if we cannot resolve the matters between houses, but I am hopeful that, with goodwill, we will be able to do that.

The CHAIR: Certainly. Thank you, minister.

Motion carried.