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House of Assembly - Fifty-First Parliament, Third Session (51-3)
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STATUTES AMENDMENT (PUBLIC HEALTH INCIDENTS AND EMERGENCIES) BILL

Introduction and First Reading

The Hon. J.D. HILL (Kaurna—Minister for Health, Minister for the Southern Suburbs, Minister Assisting the Premier in the Arts) (11:56): Obtained leave and introduced a bill for an act to amend the Electricity Act 1996, the Emergency Management Act 2004, the Essential Services Act 1981, the Fire and Emergency Services Act 2005, the Gas Act 1997, the Public and Environmental Health Act 1987 and the Summary Offences Act 1953. Read a first time.

Second Reading

The Hon. J.D. HILL (Kaurna—Minister for Health, Minister for the Southern Suburbs, Minister Assisting the Premier in the Arts) (11:56): I move:

That this bill be now read a second time.

I seek leave to have the second reading explanation inserted in Hansard without my reading it.

Leave granted.

The World Health Organisation (WHO) in The World Health Report 2007—A Safer Future: Global Public Health Security in the 21st Century reminded the world that every day, the constant movement of people and products carries with it the potential to spread highly infectious diseases and other hazards more rapidly than at any time in history. As the WHO put it 'A sudden health crisis in one region of the world is now only a few hours away from becoming a public health emergency in another.'

'Today's highly mobile, interdependent and interconnected world provides myriad opportunities for the rapid spread of infectious, and radionuclear and toxic threats. Infectious diseases are now spreading geographically much faster than at any time in history. It is estimated that 2.1 billion airline passengers travelled in 2006; an outbreak or epidemic in any one part of the world is only a few hours away from becoming an imminent threat somewhere else.'

'Infectious diseases are not only spreading faster, they appear to be emerging more quickly than ever before. Since the 1970s, newly emerging diseases have been identified at an unprecedented rate of one or more per year. There are now nearly 40 diseases that were unknown a generation ago. In addition, during the last five years, WHO has verified more than 1100 epidemic events worldwide. Among them was a deadly new disease, SARS—Severe Acute Respiratory Syndrome—which sparked an international alert in 2003. Today, there is a real and continuing threat of a human influenza pandemic that could have much more serious human and economic consequences'.

More recently, in the context of the unfolding H1N1 Influenza 09 (Human Swine Influenza) outbreaks, the Director-General of the WHO, Dr Margaret Chan, in a statement made at the Secretary-General's briefing to the United Nations General Assembly in May 2009, made the following points—

'Influenza pandemics are caused by a virus that is either entirely new or not known to have circulated among humans in recent decades. This means, in effect, that nearly everyone in the world is susceptible to infection.

It is this almost universal vulnerability to infection that makes influenza pandemics so disruptive.

Historically, influenza pandemics have encircled the globe in two, sometimes three, waves. During the previous century, the 1918 pandemic, the most deadly of them all, began in a mild wave and then returned in a far more deadly one. In fact, the first wave was so mild that its significance as a warning signal was missed.

The world today is much more alert to such warning signals and much better prepared to respond.

The pandemic of 1957 began with a mild phase followed, in several countries, by a second wave with higher fatality. The pandemic of 1968 remained, in most countries, comparatively mild in both its first and second waves.

At this point, we have no indication that we are facing a situation similar to that seen in 1918. As I must stress repeatedly, this situation can change, not because we are overestimating or underestimating the situation, but simply because influenza viruses are constantly changing in unpredictable ways. The only thing that can be said with certainty about influenza viruses is that they are entirely unpredictable.'

Later in May, when addressing the ASEAN + 3 Health Ministers' special meeting, Dr Chan indicated that 'the world is better prepared for an influenza pandemic than at any time in history...'. The years of tracking the H5N1 avian influenza virus in humans and animals taught the world to expect a pandemic and to plan for such an event.

The Australian Government and each of the States and Territories have been planning, and continue to plan, for the possibility of an outbreak of pandemic influenza. The National Action Plan for Human Influenza Pandemic and the Australian Health Management Plan for Pandemic Influenza (AHMPPI) describe the overarching aim of pandemic preparedness as being to protect Australians and reduce the impact of the pandemic on social and economic functioning. As AHMPPI notes, 'An influenza pandemic has the capacity to cause economic and societal disruption on a massive scale. If Australia is prepared, we are more able to reduce dramatically the impact of an influenza pandemic by minimising the number of people who become infected, protecting critical infrastructure and essential services in our society and considerably improving the health outcomes for those who are affected.'

Planning is based on a set of assumptions that have been identified using the best scientific and medical evidence. Processes are in place for continual review of these assumptions, to ensure planning continues to be evidence-based and in line with the latest advances, and to reassess the assumptions as quickly as possible following the emergence of a pandemic, should it behave differently than initial assumptions suggested.

The South Australian government has been working, and continues to work, with other governments, the community and the private sector to plan for the challenges that may be faced during a pandemic.

Under the State's emergency arrangements, the Department of Health has responsibility for identifying and managing the response to a human disease incident. It will activate response phases and direct when activities and strategies need to change. In the event that a human disease outbreak involves a national and/or international response (such as an influenza pandemic) it will work in conjunction with Commonwealth, State and local governments.

The Department has developed a series of plans to guide South Australia's response to an influenza pandemic. These are 'live documents' and, as with AHMPPI, the plans will continue to be updated as new clinical evidence or other prevention and management strategies emerge or are developed. The plans will form part of, or be recognised in, the State Emergency Management Plan.

The key strategies that will drive South Australia's response to pandemic influenza are to delay it, contain it and sustain the response, control it and recover from it.

Each of these responses has specific triggers, actions and objectives which support both national and international strategies.

1. Delay it

Once the pandemic virus emerges overseas, the aim is to control or eliminate the virus within other countries to prevent, or delay to the greatest extent possible, the arrival of the virus into Australia and South Australia.

2. Contain it and sustain the response

Once the pandemic virus arrives in Australia, the aim is to contain the outbreak as much as possible and prevent transmission and spread for as long as possible. The response will be sustained while awaiting a pandemic vaccine.

3. Control it

The aim is to control the pandemic spread with a vaccine.

4. Recover from it

Once the pandemic is under control, return to normal, while remaining vigilant.

Legislative preparedness needs to take into account the nature of the development of a pandemic and provide the powers necessary to support response strategies.

Government response to pandemic influenza resides within a legislative framework of which the primary structures are:

Commonwealth quarantine powers

State public and environmental health powers

National health security legislation

Commonwealth and State emergency powers

The Commonwealth has express legislative power with respect to quarantine under the Quarantine Act 1908. While several SA public health doctors hold appointments under the Commonwealth Quarantine Act 1908, these powers are traditionally used for border control and operating under the direction of the Commonwealth Director of Human Quarantine.

It is possible under the Quarantine Act for the Governor-General to issue a declaration of an epidemic or the danger of an epidemic caused by a quarantinable disease in a part of the Commonwealth, which then enables the Commonwealth Minister to give directions to control and eradicate the epidemic by quarantine measures or measures incidental to quarantine. The Commonwealth has indicated that its powers could be used in the event that a State's or Territory's powers had gaps or were inadequate to address the outbreak.

As the National Action Plan for Human Influenza Pandemic noted, States and Territories have reviewed their powers in relation to quarantine arrangements within their own jurisdictions.

The State's public health powers under the Public and Environmental Health Act 1987 (P&EH Act) currently provide a basis for health officers to respond to outbreaks of certain diseases by directing affected persons into quarantine. However, there are shortfalls in these provisions, most notably, that there is no clear power to quarantine asymptomatic (well) people who have had contact with a case or a suspected case to prevent them unwittingly passing on infection before they themselves become symptomatic.

It is critical that the State has adequate powers to address an outbreak of disease, such as an influenza pandemic, in the State and not be reliant on actions/directions from the Commonwealth. The two sets of powers and levels of government need to be able to work together in a co-ordinated manner.

The State's emergency powers under the Emergency Management Act 2004 (EM Act) are far-reaching but the early recognition of warning signs of a pandemic by the Department of Health, together with its expertise, make it better placed to respond to such an emergency in the first instance. Under the State's emergency arrangements, the Department of Health has responsibility for identifying and managing the response to a human disease incident.

States and territories recently participated in the development of new national health security legislation (the National Health Security Act 2007—'NHSA').

The NHSA provides for the exchange of public health surveillance information between jurisdictions and with the WHO to enhance the early identification of and timely response to national or international public health emergencies, including an influenza pandemic. It also establishes the operational arrangements for Australia to meet its obligations under the International Health Regulations (IHR). (The IHR aim to prevent, protect against, control and provide a public health response to the international spread of disease in ways which avoid unnecessary interference with international traffic and trade.)

The NHSA is underpinned by an intergovernmental agreement which establishes a surveillance and decision-making framework to support co-ordinated national response to public health emergencies, such as an influenza pandemic. The Agreement recognises the responsibility of States and Territories for responding to public health threats within their jurisdictions in accordance with their own public health and emergency legislation and plans. The role of the AHPC will complement, and not impede, the authority of jurisdictions to act.

In parallel with the general planning for an influenza pandemic, the SA Department of Health, in collaboration with a number of other agencies such as SAPOL, has been reviewing its legislation to respond to public health emergencies. Regard has also been had to national work to ensure there are mechanisms that enable jurisdictions to respond in a nationally co-ordinated way in the event of a public health emergency such as a pandemic.

In addition, the unfolding international 'real life' situation with H1N1 Influenza 09 (Human Swine Influenza) has caused added focus on areas for further improvement in legislative powers.

The P&EH Act is over 20 years old and while it provides some powers, the potential for new epidemics necessitates complementing existing infectious disease controls with broader public health emergency powers to respond appropriately. The Government is engaged in a broad review of the overall P&EH Act and changes will be brought before this House in due course.

It should also be noted that, while the focus is currently on disease, public health emergencies may arise from agents that may be biological, toxins or poisons and not 'quarantinable diseases' within the scope of the Quarantine Act. The proposed new provisions in the P&EH Act provide powers to deal with public health incidents and emergencies that are not disease-specific.

Some jurisdictions already have significant public health emergency powers in their legislation or are in the process of updating them.

The Bill makes significant amendments to the EM Act and the P&EH Act. A number of consequential amendments are made to other legislation.

The scheme within the Bill maintains the EM Act as the principal, overarching Act for management of a State emergency.

It provides an additional mechanism to respond to public health incidents or emergencies under the P&EH Act without needing to seek a declaration under the EM Act until such time as that may be required. This better reflects the Department of Health's responsibility for identifying and managing the response to a human disease incident.

The amendments enable a two-stage approach from an emergency management perspective—

In the initial stages, Health, with its expertise to manage a health issue, will manage the response. If the situation warranted it, the Chief Executive, Department of Health (CE Health) could declare a public health incident or emergency after consultation with the Chief Medical Officer and the State Co-ordinator under the EM Act. If that occurred, once a public health incident or emergency is declared, most of the EM Act powers ‘come across' and the CE Health can exercise them under a public health incident or emergency declaration.

If the situation escalated in magnitude, such that a whole-of-government State emergency response was necessary, the State Co-ordinator under the EM Act would be approached, seeking a declaration under the EM Act. This would be with the aim of ensuring a co-ordinated approach to whole-of-government strategic decision making.

The scheme also allows for an easy transition from the P&EH Act to the EM Act if and when this is needed, that is, a scaling up in the level of response should it get to the stage where co-ordination of a number of agencies is required.

Each public health emergency would need to be considered separately, given the features would most likely be different and may have the potential to change rapidly (for example, there is much uncertainty about the nature of pandemic influenza virus and how it might develop).

However, it is likely that the stage at which an EM Act declaration would be sought would be when the situation had deteriorated to the point that the emphasis needed to shift to the provision of priority products and services and maintenance of essential services.

Once an EM Act declaration had been made, the State Co-ordinator could (under clause 26 of the Bill—new section 37C(3)—request the Chief Executive, SA Health (CE Health), to revoke a public health emergency declaration. If that occurred, the CE Health would be able to act under delegation of the State Co-ordinator to continue the Health response, using the same powers but under the EM Act.

It would be possible under the provision for declarations under the EM Act and P&EH Act to operate in tandem, with the State Co-ordinator attending to whole-of-government, maintenance of priority and essential service matters and the CE Health continuing the Health response.

Clearly, in such circumstances, Cabinet, the Emergency Management Council of Cabinet and the State Emergency Management Committee would be monitoring the situation.

Turning specifically to the key provisions in relation to the EM Act—

Clause 3(2) amends the definition of emergency to clarify that the definition relates to an event occurring in the State or outside the State, or both. The amendment makes it clear that invoking the provisions of the Act does not rely on an event having reached the State. This provision is particularly important in relation to a public health emergency such as an influenza pandemic, given the unpredictability of influenza viruses.

Duration of declarations—the experience gained from the Eyre Peninsula bushfires and the planning for a pandemic have shown the current timeframes for duration of declarations to be insufficient. The amendments therefore introduce greater flexibility by extending the maximum initial period for major emergencies to 14 days and clarifying that that period may be extended by such further periods of any length as approved by the Governor. In relation to a disaster declaration, the amendments extend the maximum initial period for disasters to 30 days and clarify that that period may be extended by such further periods of any length as approved by resolution of both Houses of Parliament.

Clarification is provided that an emergency may be declared to be an identified major incident, major emergency or disaster whether or not the emergency has previously been declared to be a public health incident or public health emergency under the P&EH Act. Thus an emergency that has been dealt with under the P&EH Act may be taken over and dealt with under the EM Act.

Important new powers are proposed for section 25. The State Co-ordinator or an authorised officer are provided with the following additional powers when dealing with emergencies declared under the principal Act:

to remove or destroy, or order the removal or destruction of, any building, structure, vehicle, vegetation, animal or other thing;

to carry out, or cause to be carried out, excavation or other earthworks;

to construct, or cause to be constructed, barriers, buildings or other structures;

to direct a person to remain isolated or segregated from other persons or to take other measures to prevent the transmission of a disease or condition to other persons;

to direct a person to undergo medical observation, examination (including diagnostic procedures) or treatment (including preventative treatment);

to require a person to furnish such information as may be reasonably required in the circumstances.

The first three of those powers were identified as being necessary, or requiring clarification, in the wake of the Eyre Peninsula bushfires. However, they may potentially have application in a pandemic situation and are therefore included.

The latter ‘health' powers are included to make it quite clear that in a declared emergency, persons, including well contacts of someone who has been exposed to a pandemic influenza virus, can be directed to remain isolated or segregated or take other measures to prevent transmission of a disease and may be directed to undergo medical observation or treatment.

In addition, the State Co-ordinator is given the power, in extraordinary circumstances, to authorise authorised officers, or authorised officers of a particular class, to provide, or direct the provision of, medical goods or services or a particular class of such goods or services on such conditions as the State Co-ordinator thinks appropriate.

The other ‘health' power that is included is proposed section 26A which enables the Minister to modify the operation of the Controlled Substances Act 1984 during the period of a declared emergency for the purposes of response or recovery operations. This can only be after consultation with the Minister responsible for the administration of the Controlled Substances Act 1984.

The above ‘health' powers are significant and are discussed in more detail below.

These proposals have been developed in consultation with SAPOL and SAPOL supports them.

Turning to the amendments to the P&EH Act, it is clear that there is a need to have modern public health law that can respond not only to ‘traditional' public health issues, but also has the flexibility to deal with emerging public health concerns of the 21st Century. New and emerging dangers—including emergent and resurgent infectious diseases and incidents resulting in mass casualties, have focussed attention on the adequacy of legislative frameworks. As was observed in the Exercise Cumpston 06 Report, the community expects government to provide leadership in preventing disease outbreaks and, in the event of an outbreak, to respond and assist recovery quickly and effectively. Public health legislation therefore needs to be flexible enough to respond to a variety of emergency situations and integrate with other emergency responses.

Some communicable diseases can be infectious before an individual produces symptoms that would lead to a diagnosis. As a result it may be necessary to quarantine asymptomatic (well) people who have had contact with a case or a suspected case to prevent them unwittingly passing on infection before they themselves become symptomatic.

The existing powers under the P&EH Act do not provide a clear power to do that.

While people tend to be co-operative if the reasons for doing so are explained to them and it is made as easy as possible to do so, there also needs to be powers available to deal with non-compliance. It could be expected that in a situation of rapidly escalating magnitude, such as an influenza pandemic, compliance could become an issue.

The Bill therefore provides new powers for the Chief Executive, Department of Health (CE Health) to declare a public health incident or emergency after consultation with the Chief Medical Officer and the State Co-ordinator under the EM Act. This is not a power that would be exercised lightly. Once a public health incident or emergency is declared, most of the EM Act powers are applied and the CE Health can exercise them under a public health incident or emergency declaration.

A public health incident, which has application for 12 hours (mirroring the identified major incident under the EM Act) might be declared for a serious incident, but one not as dire as a public health emergency.

A public health emergency can be declared by the CE Health for a period not exceeding 14 days and any further period must be approved by the Governor.

On declaration of a public health incident or emergency, the CE Health must take action to implement the Public Health Emergency Management Plan and cause such response and recovery operations to be carried out as thought appropriate.

The Department has developed a series of plans to guide South Australia's response to an influenza pandemic. These are 'live documents' which will continue to be updated as new clinical evidence or other prevention and management strategies emerge or are developed. The plans will form part of, or be recognised in, the State Emergency Management Plan.

The powers available to the CE Health are significant. Clearly, they will not be exercised lightly or capriciously.

New clause 25(3)—

Can only be exercised by the State Co-ordinator or Chief Executive for the duration of a declaration

Must arise from advice of the Chief Medical Officer

Who would be permitted to do what and on what conditions is within the control of the State Co-ordinator or Chief Executive and would be tightly controlled. It may, for example, be used—

in the event of workforce shortages and if interstate health professionals were available and brought urgently to assist, and there was not time for them to go through the registration process with the relevant professional board, the provision could be used to authorise them to provide specified goods or services on specified conditions;

in the event that flu clinics were established, perhaps with only one senior doctor if the workforce was stretched, and it was necessary for para professionals to assist, they may be authorised to do so. A clinical governance framework is being developed for flu clinics, with various sets of clinical guidelines to which staff will have to adhere. The conditions attached to the authorisation could explicitly require such compliance.

The rationale for the inclusion of new clause 26A, which allows for the Controlled Substances Act 1984 to be modified, was primarily to cover situations that may arise with the distribution and supply of medication during a pandemic where there may not be a formal prescription and nurses or other health professionals may need to assist with supply;

There are checks and balances built in—

it is the Minister who would issue the notice;

the Minister must form the opinion that it is necessary or desirable to do so;

it could only be done for the purposes of the response or recovery operations;

the Minister is obliged to first consult with the Minister responsible for the administration of the Controlled Substances Act;

the notice can only be for the duration of a declaration.

The government recognises that the proposed powers in the Bill are significant and substantial powers. It makes no apologies for seeking to have such powers available should they need to be used to protect South Australians in the event of a public health emergency such as an influenza pandemic. The granting of significant powers does carry risk—that risk is outweighed by the recognition that the exercise of those powers would be for the purpose of promoting the common good.

I commend the Bill to Members.

Explanation of Clauses

Part 1—Preliminary

1—Short title

This clause is formal.

2—Amendment provisions

This clause is formal.

Part 2—Amendment of Electricity Act 1996

3—Amendment of section 54—Emergency legislation not affected

This clause makes it clear that nothing in the Electricity Act 1996 affects the exercise of powers that are able to be exercised under Part 4A of the Public and Environmental Health Act 1987.

Part 3—Amendment of Emergency Management Act 2004

4—Amendment of section 3—Interpretation

Clause 3(1) includes in the interpretation section of the principal Act, the definition of Chief Medical Officer.

Clause 3(2) amends the definition of emergency to clarify that the definition relates to an event occurring in the State or outside the State, or both. The amendment makes clear that invoking the provisions of the Act does not rely on an event having reached the State.

5—Amendment of section 17—Authorised officers

This clause clarifies that the appointment of authorised officers may be made subject to conditions specified by the State Co-ordinator.

6—Amendment of section 23—Major emergencies

This clause amends section 23 of the principal Act to extend the maximum initial period for major emergencies to 14 days and to clarify that that period may be extended by such further periods of any length as approved by the Governor.

7—Amendment of section 24—Disasters

This clause amends section 24 of the principal Act to extend the maximum initial period for disasters to 30 days and to clarify that that period may be extended by such further periods of any length as approved by resolution of both Houses of Parliament.

8—Insertion of section 24A

This clause inserts section 24A into the principal Act.

24A—Public health incidents and emergencies

Proposed section 24A clarifies that an emergency may be declared to be an identified major incident, major emergency or disaster whether or not the emergency has previously been declared to be a public health incident or public health emergency under the Public and Environmental Health Act 1987. This indicates that an emergency that has been dealt with under the Public and Environmental Health Act 1987 may be taken over and dealt with under the Emergency Management Act 2004.

9—Amendment of section 25—Powers of State Co-ordinator and authorised officers

This clause gives the State Co-ordinator or an authorised officer the following additional powers when dealing with emergencies declared under the principal Act:

to remove or destroy, or order the removal or destruction of, any building, structure, vehicle, vegetation, animal or other thing;

to carry out, or cause to be carried out, excavation or other earthworks;

to construct, or cause to be constructed, barriers, buildings or other structures;

to direct a person to remain isolated or segregated from other persons or to take other measures to prevent the transmission of a disease or condition to other persons;

to direct a person to undergo medical observation, examination (including diagnostic procedures) or treatment (including preventative treatment);

to require a person to furnish such information as may be reasonably required in the circumstances.

In addition, the State Co-ordinator is given the power, in extraordinary circumstances, to authorise authorised officers, or authorised officers of a particular class, to provide, or direct the provision of, medical goods or services or a particular class of such goods or services on such conditions as the State Co-ordinator thinks appropriate.

10—Amendment of section 26—Supply of gas or electricity

This clause enables the State Co-ordinator or authorised officer to direct a person to connect or reconnect a supply of gas or electricity to premises, adding to their existing powers to direct a person to shut off or disconnect such services.

11—Insertion of section 26A

This clause inserts section 26A into the principal Act.

26A—Modification of Controlled Substances Act

Proposed section 26A enables the Minister to modify the operation of the Controlled Substances Act 1984, if it is necessary or desirable to do so.

12—Insertion of section 31A

This clause inserts section 31A into the principal Act

31A—Confidentiality

Proposed section 31A makes it unlawful for a person to intentionally disclose medical or personal information obtained in the course of the administration or enforcement of this Act in relation to another person unless that disclosure is—

made in the course of the administration or enforcement of this Act; or

made with the consent of the other person; or

required by a court or tribunal constituted by law.

Part 4—Amendment of Essential Services Act 1981

13—Amendment of section 6—Power to require information

This clause adds the requirement that any information obtained by the Minister under section 6 relating to the provision or use of an essential service be relevant or incidental to the administration of Part 4A of the Public and Environmental Health Act 1987 (Management of Emergencies).

Part 5—Amendment of Fire and Emergency Services Act 2005

14—Amendment of section 3—Interpretation

This clause clarifies that the definition of emergency relates to an event occurring in the State or outside the State, or both. The amendment makes clear that invoking the emergency provisions of the Act does not rely on an event having reached the State.

15—Amendment of section 42—Powers

This clause gives an officer of SAMFS the following additional powers when dealing with a fire or emergency:

to remove or destroy, or order the removal or destruction of, any building, structure, vehicle, vegetation, animal or other thing;

to carry out, or cause to be carried out, excavation or other earthworks;

to construct, or cause to be constructed, barriers, buildings or other structures;

subject a place or thing to a decontamination procedure;

to direct a person to submit to a decontamination procedure.

16—Amendment of section 44—Supply of gas or electricity

This clause enables a person lawfully dealing with a situation under the Division to direct a person to connect or reconnect a supply of gas or electricity to premises, adding to their existing powers to direct a person to shut off or disconnect such services.

17—Amendment of section 97—Powers

This clause gives an officer of SACFS the following additional powers when dealing with a fire or emergency:

to remove or destroy, or order the removal or destruction of, any building, structure, vehicle, vegetation, animal or other thing;

to carry out, or cause to be carried out, excavation or other earthworks;

to construct, or cause to be constructed, barriers, buildings or other structures;

subject a place or thing to a decontamination procedure;

to direct a person to submit to a decontamination procedure.

18—Amendment of section 99—Supply of gas or electricity

This clause enables a person lawfully dealing with a situation under the Division to direct a person to connect or reconnect a supply of gas or electricity to premises, adding to their existing powers to direct a person to shut off or disconnect such services.

19—Amendment of section 108—Functions and powers

This clause adds to the functions of SASES, the function of assisting the Chief Executive within the meaning of the Public and Environmental Health Act 1987, in accordance with the Public Health Emergency Management Plan, in carrying out prevention, preparedness, response or recovery operations under Part 4A of that Act.

20—Amendment of section 118—Powers

This clause gives an officer of SASES the following additional powers when dealing with a fire or emergency:

to remove or destroy, or order the removal or destruction of, any building, structure, vehicle, vegetation, animal or other thing;

to carry out, or cause to be carried out, excavation or other earthworks;

to construct, or cause to be constructed, barriers, buildings or other structures;

subject a place or thing to a decontamination procedure;

to direct a person to submit to a decontamination procedure.

21—Amendment of section 119—Supply of gas or electricity

This clause enables a person lawfully dealing with a situation under the Division to direct a person to connect or reconnect a supply of gas or electricity to premises, adding to their existing powers to direct a person to shut off or disconnect such services.

Part 6—Amendment of Gas Act 1997

22—Amendment of section 54—Emergency legislation not affected

This clause makes it clear that nothing in the Gas Act 1997 affects the exercise of powers that are able to be exercised under Part 4A of the Public and Environmental Health Act 1987.

Part 7—Amendment of Health Care Act 2008

23—Amendment of section 51—Functions and powers of SAAS

This clause enables SAAS to direct a person holding a restricted ambulance service licence to assist with the provision of response and recovery operations in such a manner as the SAAS sees fit if a public health incident or public health emergency has been declared under the Public and Environmental Health Act 1987.

Part 8—Amendment of Public and Environmental Health Act 1987

24—Amendment of section 3—Interpretation

This clause inserts a number of new terms in the Act that are required for proposed Part 4A dealing with the management of emergencies. The definitions are as follows:

(a) Chief Medical Officer means the Chief Medical Officer of the Department and includes a person for the time being acting in that position;

(b) emergency has the same meaning as in the Emergency Management Act 2004;

(c) emergency officer means a police officer or a person holding an appointment as an emergency officer under section 7A;

(d) public health emergency—see section 37B;

(e) public health incident—see section 37A;

(f) Public Health Emergency Management Plan means a plan (or a series of plans) prepared by the Chief Executive comprising strategies to be administered by the Department for the prevention of emergencies in this State and for ensuring adequate preparation for emergencies in this State, including strategies for the containment of emergencies, response and recovery operations and the orderly and efficient deployment of resources and services in connection with response and recovery operations;

Note—

It is contemplated that the Public Health Emergency Management Plan will form part of, or be recognised in, the State Emergency Management Plan prepared under the Emergency Management Act 2004.

(g) recovery operations has the same meaning as in the Emergency Management Act 2004;

(h) response operations has the same meaning as in the Emergency Management Act 2004;

(i) State Co-ordinator means the person holding or acting in the position of State Co-ordinator under the Emergency Management Act 2004.

25—Insertion of section 7A

This clause inserts section 7A into the principal Act.

7A—Emergency officers

This clause provides for the appointment of emergency officers and is equivalent to the provision enabling the appointment of authorised officers under the Emergency Management Act 2004. It is anticipated that emergency officers will be involved in the administration of proposed Part 4A (Management of emergencies).

26—Insertion of Part 4A

This clause inserts Part 4A into the principal Act.

Part 4A—Management of emergencies

37A—Public health incidents

This clause enables the Chief Executive to declare an emergency to be a public health incident. Such a declaration remains in force for a maximum of 12 hours.

37B—Public health emergencies

This clause enables the Chief Executive to declare an emergency to be a public health emergency. Such a declaration remains in force for a maximum of 14 days but may be extended by such further periods of any length approved by the Governor.

37C—Making and revocation of declarations

This clause provides that—

the Public Health Emergency Management Plan may contain guidelines setting out circumstances in which an emergency should be declared as a public health incident or as a public health emergency;

consultation with the Chief Medical Officer and the State Co-ordinator (within the meaning of the Emergency Management Act 2004) must take place before a declaration is made; and

the Chief Executive must revoke a declaration under this Part at the request of the State Co-ordinator.

37D—Powers and functions of Chief Executive

This clause sets out the main powers and functions of the Chief Executive on the declaration of a public health incident or public health emergency. These are—

to take any necessary action to implement the Public Health Emergency Management Plan and cause such response and recovery operations to be carried out as he or she thinks appropriate; and

to provide information relating to a public health incident or public health emergency to the State Co-ordinator in accordance with any requirements of the State Co-ordinator.

37E—Application of Emergency Management Act

This clause applies certain provisions of the Emergency Management Act 2004 (modified in accordance with subsection (2)) with the effect that, on the declaration of a public health incident or public health emergency, the Chief Executive or emergency officers will be able to exercise most of the powers that are able to be exercised by the State Co-ordinator and authorised officers under the Emergency Management Act 2004. The applied provisions of that Act are:

Part 4 Division 4 (Powers that may be exercised in relation to declared emergencies) except section 25(1) and (2)(n);

Part 4 Division 5 (Recovery operations);

Part 5 (Offences);

Part 6 (Miscellaneous) except sections 37 and 38; and

definitions in section 3 of terms used in the above provisions.

27—Amendment of section 47—Regulations

This clause adds to the regulation making powers in section 47 of the principal Act, the power for the regulations to provide for such matters as are necessary in consequence of conditions directly or indirectly caused by an emergency declared to be a public health incident or public health emergency under the Act.

Part 9—Amendment of Summary Offences Act 1953

28—Amendment of section 83B—Dangerous areas

This clause provides that a declaration of a dangerous area, locality or place under section 83B of the Summary Offences Act 1953 may not be made in relation to circumstances arising in an emergency for which a declaration under the Emergency Management Act 2004 or Part 4A of the Public and Environmental Health Act 1987 is in force.

Ms CHAPMAN (Bragg—Deputy Leader of the Opposition) (11:56): I indicate that, although I have not yet read the minister's second reading explanation (which is some 11 pages in content), I have discussed with opposition members the draft bill and the explanatory memorandum that was presented to me last Thursday. That meeting arose out of my reading in the Adelaide Advertiser, the day before the government's announcement, that it intended to introduce legislation in the parliament this week, essentially as a matter of some urgency, to prepare for a potential flu epidemic—they were the words published in The Advertiser—with a proposal to 'strengthen the existing laws to manage medical emergencies'.

I will read the minister's second reading explanation in detail in due course on the assumption that it confirms the information orally conveyed by a member of the Department of Health and a representative from the minister's office last week, and on the basis that the opposition accepts that the government has a responsibility to ensure that the people of South Australia and, indeed, stock, animals, pets and property are protected in the event of emergencies (including health incidents and emergencies), and that it has a very important responsibility to act in this regard.

It is the opposition's view that we need to be prepared and that a responsible government would act to inquire and inform the parliament in the event of there being a need for legislative change in an emergency, such as has occurred with the potential pandemic arising out of what is commonly known as the swine flu virus. This health emergency (the virus is past its embryonic stage) has been with us for some weeks and apparently has emanated from Mexico, having spread to several other continents. I think there is now one confirmed carrier of the virus in Australia—not in South Australia—someone who has come into Queensland from the United States.

In all those circumstances, and on that basis, the opposition indicates that it supports the government in undertaking any responsible initiative and will support the government in any change of legislation to ensure that the people of South Australia are protected in those circumstances, that is, with a health incident that could develop into an emergency or a disaster, and that we are in a position to appropriately manage, advise, inform and protect the people of South Australia.

With those comments, the opposition has raised no objection to this legislation being presented at the first available time, but I qualify the opposition's readiness to come in and support any emergency legislation with the fact that I am informed that the government has already, by regulation, initiated the new powers that we are about to debate. It has used its powers for the promulgation of regulation to introduce new powers, expand that to other officers and, essentially, swine influenza—I do not know what the correct medical terminology is, probably some very complicated name, but I think we all understand what we are talking about—is already, by regulation, identified and will be treated as a notifiable disease, of which the Public Environmental Health Act obligations attract.

I say at the outset that the opposition will agree to the debate and the passing at second reading of this bill, but already, in the couple of days that we have been examining this material, there are a number of aspects that we raise a question mark to and of which we will reserve the right to debate further in another place. In an abundance of caution, to ensure that the government is not impeded in any way by what may be required, of which it is able to subsequently satisfy the opposition in due course of the necessity for the implementation of new regimes, some of which are in this bill, we will, nevertheless, allow this to proceed at the second reading stage.

I am not here to identify what will happen in another place. Of course there is another chamber in this parliament and those members will make decisions about what they think is appropriate when it comes to their attention and in the order of which they determine the priority of legislation should go through, but we will be continuing to work to identify what is appropriate, what is necessary, what is just a possibility of being on the safe side, all those things, identify those and indicate to the government, as we work through this, together with other stakeholders, what we should be doing on this.

I mention other stakeholders because in the briefing that was provided to me last week I was assured that all the relevant stakeholders had been privy to and had participated in, over a very sustained period, I think some two years, discussions that had been undertaken by the relevant parties, whomever they may have been. Nevertheless, the usual stakeholders, as presented in the briefing, had been consulted and had been participating in these discussions over a period of time in respect of reform that may be necessary.

Some of that has arisen because there have been other health incidents potentially quite dangerous to the public, namely the equine flu, which was a circumstance in the last couple of years that penetrated through the Sydney quarantine facilities, and which caused considerable difficulty, particularly in Victoria, New South Wales and South Australia.

In that instance, it was contained and identified; a vaccine was developed; it was appropriately managed and we had an inquiry. Sometimes when these incidents occur, it alerts public officials, particularly public health officials, to the need to review what our legislation does or does not do, whether or not it is adequate and the necessity to reform it if that is what is called for.

So, it is a great thing that, when these things occur, the public officials will sit down and have a look at what is necessary, what will work, what may not work and what are new factors. In the equine issue, it was a question of being able to get around our restrictions on genetic modifications or protocols required for the development of vaccines. We needed to look at that and reform it. As a parliament, we did so, and that is the proper course.

I am advised that the public health officials here in South Australia had been looking, over some time, at how adequate our provisions would be in these types of events. I did not ask for, and I have not yet been provided with, a list, so I do not know which actual stakeholders were consulted, but when I rang the AMA (Australian Medical Association) shortly after receiving the briefing and a draft copy of the bill, it had not heard of it. That puzzled me a little given that I would have thought that that is a body that would obviously be on the list of stakeholders.

The Australian Medical Association, of course, represents the medical profession. Similarly, I think it is fair to say that the principal voice for nurses in South Australia is the Australian Nurses Federation. It too, it appears on inquiry, had only just got these documents. It had not been consulted over the last two years about changes to the Controlled Substances Act or changes to the protocols for distribution of vaccines or immunisation procedures that would be undertaken. That is what I am told as a preliminary.

Those two organisations, I would have thought, would be very involved in this. When it comes to health, I would have thought that, as well as the police force and emergency services, such as the Country Fire Service, the Metropolitan Fire Service or State Emergency Services—all the usual suspects in a state of emergency—the two most significant bodies that would at least be on the list, if not near the top, would be the Australian Medical Association and the Australian Nurses Federation. However, probably some of their members in either category read it in the paper as we did.

It is a little bit of a concern that, in such a briefing, we would not see these two significant players. One would have thought that, when this whole regime of interference with the legal obligations that people have—that is, breaking the law—and the requirements under the Controlled Substances Act as to who is qualified to prescribe and administer drugs, etc. are under consideration to be not just ignored but in fact exempted from the obligations under that type of legislation, those bodies would have been consulted. That is very disappointing to me, because it raises questions about the credibility of everything else we are told. It is very disappointing.

Let me say that, just a week before, the government offered a briefing on the swine flu situation, which we appreciated and which we accepted. A number of people had been identified as possible carriers of the virus in South Australia and, obviously, concern was increasing. There was a public inquiry and there was a responsibility (which, I place on the record, I think the government responded to appropriately) to keep the public informed as to any difficulties that may be encountered and the important things that individual South Australians can do to minimise their own exposure to risk. They are very simple things such as washing hands and hygiene, issues in relation to food and getting flu shots. All those sorts of things are advised, helpful and important. I cannot say I was overly impressed with the advertisement that was put out for television, but that is just a personal thing. Nevertheless, it is the responsibility of government to advise the public, and it did so.

During that briefing, a number of questions were asked about how well South Australia will be prepared for a pandemic with a very large number of people becoming contaminated within a short period. How many of these face masks do we have? Do we need them at all? If we do need them, do we have enough? Those are all the mechanical things. Where is the testing being undertaken for South Australians? It was explained that it is in Victoria. That is taking it a distance away, of course, because you have to physically transfer the samples to the testing site and presumably have the results emailed or faxed back. However, they are the mechanics of those sorts of things.

What is the process to be undertaken for the development of a vaccine to deal with a new strain of virus? Representatives of the public health division of the Department of Health (including Professor Paddy Phillips) were at that briefing to explain to us that all these viruses come from an animal or bird at some stage and that the issues that surround the exposure to risk for humans somehow or other (and I paraphrase this) are a result of how quickly they mutate and are able to transfer from human to human. I am not a biologist. Professor Phillips is the expert in this area and we take his advice and, in this case, it is whether the swine flu is more potentially dangerous than any other flu and whether he was satisfied that a process was being undertaken by the relevant public and private authorities or companies for the development of a vaccine, which we were told sometimes can take up to six months.

At the briefing on that occasion—a week before last week's briefing—things were in order and under control. The processes were going as expected and there had been no significant outbreak anywhere in Australia at that point. There had been some identified suspects, but people were complying and staying at home if they had been asked to. People were being screened as they came through airports and were cooperating, as you would expect, and that is great.

I asked the question: is there any impediment, currently, under South Australian law that we would need to consider changing to ensure that there is sufficient power to protect South Australians in the event of a swine flu pandemic (which is the language being used)? The answer was: no, there is no need to change the law because there are sufficient powers and there is the backup of commonwealth quarantine powers. So, I left that briefing reassured by the most senior of public health officials that we are safe and the issue is being properly supervised and managed; and that the public was being given appropriate information, caution, advice and reassurance. I felt things were pretty much in order for what can always be a difficult period if there is any kind of disaster, major incident or emergency. In any event, we seemed to be prepared.

At the time, I remember refreshing my own memory of the Emergency Management Act 2004, because that piece of legislation went through this place shortly after I came into parliament. This legislation established a new regime and sets of strategies to manage emergencies that might occur in South Australia where persons would be at risk of death or injury, or property would be at risk of destruction, or whatever.

The legislation established a new process to be undertaken in the event of an emergency. It also established the State Emergency Management Committee, with a state coordinator, defined as the Commissioner of Police. The committee comprised the most senior members of the emergency services (the CFS, the MFS, etc.), that is, all the usual people you would expect to be on a state emergency management committee. Various other parties could be nominated by ministers, and they were selected from nominations made by the Commissioner of Police, St John Ambulance, the Local Government Association and so on. So, it was a pretty comprehensive committee.

In 2004, this new law fundamentally shifted the responsibility of who called the shots and made the decisions in the event of an incident, an emergency or a disaster, all of which were defined at different levels (and I do not think I need to repeat those), and enabled very significant powers to be invoked to protect South Australia and its people.

In certain circumstances, they could be activated by a select and restricted group of people, under the supervision and control of the Commissioner of Police, for a certain number of hours and, in some instances, days; originally, it was 12 hours for an incident, 48 hours for an emergency and 96 hours for a disaster. So, they were very restricted time frames. The definition of 'emergency' in the legislation we are being asked to amend today is, as follows:

emergency means an event that causes, or threatens to cause—

(a) the death of, or injury or other damage to the health of, any person; or

(b) the destruction of, or damage to, any property; or

(c) a disruption to essential services or to services usually enjoyed by the community; or

(d) harm to the environment, or to flora or fauna;

Note—

This is not limited to naturally occurring events (such as earthquakes, floods or storms) but would, for example, include fires, explosions, accidents, epidemics, hi-jacks, sieges, riots, acts of terrorism or other hostilities directed by an enemy against Australia.

So, 'emergency' is defined as an event that has to cause or threaten to cause the harm identified, and the notation identifies examples. Notations are now common in drafting, and I think they are very helpful, since, because of the need to be brief, it could be rather misleading and things could be left out.

In this case, I think it is pretty clear that, if there were a major flood, an earthquake, a huge bushfire, an invasion or a war declared by Victoria or a terrorist attack on our water supply in this state, these events would trigger the opportunity for the committee to get together, identify a declaration and use these extraordinary powers within the hours in which they are given operation, with powers of extension upon certain rules.

I think it is important to appreciate that this legislation today is going to replicate those powers into a new structure within the Public and Environmental Health Act to establish a new regime for what is to happen, a new category on its own, identified specifically, namely, a public health incident or emergency. I will come to the definition of that in due course.

One of the things that I think needs to be clear is that, when one reads section 25 of the Emergency Management Act 2008, the powers of the state coordinator (the Commissioner of Police) and authorised officers (who are police officers and the like, I will simply say, for the purpose of this, but it is restricted), can do a number of things during those hours in which they are permitted so to do. The declaration having been made—and it can be in the categories I have indicated—the state coordinator can take any necessary action to implement the State Emergency Management Plan and cause such response from recovery operations to be carried out as he or she thinks appropriate.

Then, under subsection (2), without limiting or derogating from the operation of the general powers just indicated, if the state coordinator thinks it necessary to do so, he or she or the authorised officer under this legislation can enter or, if necessary, break into any land, building, structure or vehicle using such force as is necessary—that is all in the opinion of the authorised person. They can take possession of, protect or assume control of any land, body of water, building, structure, vehicle or other thing—whatever that is; presumably everything. They can subject a place or thing to a decontamination procedure. They can remove or destroy or order the destruction of any building, structure, vehicle, vegetation or seriously injured animal.

The list goes on. An authorised officer is able to direct the owners of property to take charge of real or personal property, to place it under control, to dispose of it; to remove or cause to be removed to such place as the state coordinator or authorised officer thinks fit, any person or animal, or direct the evacuation or removal of any person or animal; direct or prohibit the movement of persons, animals or vehicles; direct a person to submit to the decontamination procedure which, as I have indicated, is subject to a thing or place being decontaminated; to remove flammable or hazardous material—all sorts of laws and powers in relation to being able to shut off fuel supplies, electricity, gas or any other hazardous material and to disconnect those from operation; to direct a person who is in a position to do so, to do any of the things necessary. In other words, to tell the gas company or whatever that it has to shut down various operations, etc. They can cut off the water supply, any drainage facility—and the list goes on.

Except for shooting somebody, the state coordinator and his authorised officers clearly have very extensive powers. In a really big emergency it may be that all or any of those powers need to be invoked for the limited time that is allowed. As would be obvious to everyone in this house, these are powers that, in the exceptional circumstances of a major incident, disaster or emergency, are implemented and imposed because of the emergency. Only in those circumstances is it justified that people's rights, property and freedom are crushed—because that is what these do—but they do it on the basis that the situation is so serious that it is necessary to protect South Australia and its assets, including its stock and so on. So, in very extreme situations and extraordinary circumstances, where the South Australian public and/or property is at risk, these provisions will be imposed. However, just a cursory look at these provisions informs us of the extraordinary powers we have given to the Commissioner of Police and those concerned in order to implement these provisions, and those powers are there for good reason.

Personally, I have taken the view—and I remain of the view—that the cabinet of the day, and the ministers responsible, ought to have retained more power and responsibility in these circumstances. However, it was the will of the government at the time, which the parliament accepted, that the decision to implement a lot of these powers would be transferred very substantially to members of the Public Service, and that regime still exists. Personally, I think it is the responsibility of government to ensure that it retains supervision of these powers, especially in extreme circumstances, and especially when the rights of certain organisations are extinguished for at least a short period of time, but the government has elected not to that.

I am not suggesting that members of the Public Service will in some way trample on people's rights unfairly, inappropriately or unconscionably, but sometimes in these circumstances the parliament is not in a position to meet what is required. The very nature of a disaster requires that all effort goes into remedying and protecting those who might be injured or otherwise affected in the disaster. It is not for parliaments to have to come together to hurriedly try to resolve whether or not it will bring in the army, for instance. Events occur where a prompt response is required, and that is when I think senior members of the cabinet ought to play a greater role in retaining the responsibility for when the provisions of this legislation come into effect, in particular whether a declaration is made that any of these other protocols or procedures are to be put in place.

I think it is entirely appropriate for government and senior ministers to obtain advice from senior members of departments, because those people very often have the most expertise to provide that advice. I would have thought that they would be the obvious people the government would consult and that they would express their opinion. I would have thought it is logical that, before a senior officer in one department (for example, a police officer) acted in relation to a health issue, that officer would consult with the senior person in the health department. Indeed, the decision, ultimately, as to whether a declaration is made, particularly at the disaster and emergency stage (perhaps not at the incident stage for reasons I will explain later) will involve invoking almost all the powers of the various authorities.

I would have thought that, if the government is asking the parliament to set up a whole new structure and a whole new definition of public health incidents and emergencies—especially if it wants to include in due course other types of incidents including fire or flood emergencies, and the relevant department also wants to have its own army of emergency officers—the government, at the very least, needs to look at the Emergency Management Act, which is the primary source of the power and the responsibility for emergencies, and ask itself whether, along with its senior members of cabinet, it should come into the equation and then take the responsibility to ensure that they are involved at the declaration stage. Then, of course, what flows from that is the position concerning the people who are qualified to implement the containment procedures—the protective mechanism or pre-emptive action as may be necessary to protect the public—to be invoked by those with the necessary professional qualifications, whether they be police, fire brigade or SES officers, public health officials, and so on. I certainly ask the government to look at that matter.

The bill before us seeks to amend various acts and contains, in part 3, significant amendments to the Emergency Management Act. Here, the government's published position concerning these amendments was along the lines—and they may have been expanded in the minister's second reading explanation, which I am yet to read—introducing regulations to 'add powers to order medical assessments and mandatory isolation', involving home detention or at least staying at home while potentially you can contaminate others. That related to an event involving an outbreak reaching a level of a state emergency. Further, it would include new powers for senior health officials in the event of a state emergency, again including a direction for a person to remain in isolation or to undergo medical observation, examination or treatment. That is what the Advertiser told us was the government's intention here, and that may or may not be right.

There is another aspect to swine flu being declared a controlled notifiable disease, which I will come back to in the Public and Environmental Health Act proposed amendments. We have no issue with swine flu (or whatever is its medical name) being declared a controlled notifiable disease, with the whole process and powers under the current Public and Environmental Health Act then being brought into play in the event of that virus being identified in any carrier (which I assume can be anywhere at any time), whether a human or animal carrier. If the virus lives in the dirt or in the air, there can be notification in a particular area where potentially it can be quarantined.

I return to the Emergency Management Act amendments. The definition of 'emergency' is proposed to be changed (when talking about the event that is the trigger to a declaration process) by adding the words 'the event that causes or threatens to cause' (all these dastardly things) to the words 'whether occurring in the state, outside the state or in and outside the state'—which covers both scenarios.

My understanding is that it is being inserted as an abundance of caution to ensure that, if there is a virus outbreak in dealing with a health issue in, say, Mildura, which is just over the border in Victoria, the public health officials must be absolutely sure that they are able to activate quickly the necessary restrictions, controls and powers they are vested with, whether they are those they have currently or those we might add by way of this legislation. So there would be absolutely no confusion or question that that power would be able to be initiated.

I can remember, for example, that the equine flu was identified as having arrived at a private quarantine facility out of Sydney. I cannot remember who was the minister or acting minister at the time, but I can remember that he issued a regulation, even though no horse had been identified as carrying the equine influenza in South Australia. They issued a regulation which prohibited any horse, donkey, mule or ass coming into the state.

A regulation was promulgated, quite appropriately, to deal with that situation by saying, 'It's not yet in our state, we don't want it in our state, but we will activate the necessary precaution to ensure that we don't get it or, at best, minimise the risk of its occurring.' The government sent out a notice to the world that people were not to truck in, even for a local gymkhana, what could be seen as carriers of the equine flu, which could potentially have a devastating effect on the stock of horses, asses, donkeys and mules etc. in our state.

Clearly, that is an example of the capacity to act—and appropriately so. On the abundance of caution, in order to make it absolutely clear, the government says that it wants to introduce an expanded definition of emergency. I am of the view that it is probably not necessary, but the opposition will not stand in the way of the government introducing it on the basis that, clearly, I may be wrong and some interpretation may be read down in the future to say that our current legislation was inadequate, and some direction or power implemented at a future date in setting up a barrier or destroying property on our side of the border, when the virus is on the other side of the border, is ultimately determined to be ultra vires.

We will support the government in expanding that definition. Similarly, in the notation they add the words pandemics and radiation or other hazardous agents in the list of examples. Again, the notation is not an exhaustive definition of what applies. It is an example given to the reader and those who may be interpreting this legislation of what it would apply to. It was never envisaged that this notation would be some exhaustive, definitive, confining, interpretive mechanism to legislation. Adding in 'pandemics' when you already have epidemics, accidents and other events seems superfluous, but it is the new trendy word to use so we do not have any objection to it being put in.

Radiation or other hazardous agents comes in. I am not sure where this comes from, but it is possible that over a period of time other emergency services personnel have said, 'Look, we are doing more than just chemical spills and explosions. Radiation is on the radar, so to speak, as a contaminant and we may need to specifically look at it. Let's at least alert those who might have to implement legislation in the future by adding it in.' Again, it is not a prerequisite, but it possibly gives some clarity.

Then we come to authorised officers. This is the new army of people who can be appointed and who are subject to conditions specified by the state coordinator, which I suppose raises the question of whether it is even necessary to insert a section 31A confidentiality obligation, which, for the benefit of the parliament and those who have not yet read the bill, introduces a penalty of $5,000 if a person who obtains information—for example, medical information—during these emergencies intentionally discloses it. They have committed an offence and can be punished. I would have thought that that is exactly the sort of thing that would be inserted as part of an obligation and condition of appointment as an authorised officer. At the very least, it puts them on notice of the very sensitive personal information of which they might become informed as a result of an emergency and which can and should be kept confidential.

The next most significant change in this legislation is to extend the number of days (or hours) for which the declaration remains in force. We are moving from 12 hours, 48 hours, 96 hours to 14 days in major emergencies, which is currently 48 hours. This bill proposes that, in the case of a disaster, it be increased from 96 hours to 30 days. I do not understand that extension. I have not yet received any real explanation as to why that would be permitted, especially as there is always the power, even under the current act, for extensions; and under this act, even after the 14 days or 30 days respectively, the government, through the minister, can approve further extensions.

As members have heard, I am of the view that the minister, at the very least—preferably cabinet and/or a team of senior ministers—should be in on the act at the declaration stage, and so I will never object to them continuing to have a role post that stage, but, at the moment, they come into play a matter of hours after the initial declaration is made. It is a protective mechanism. It is important again because, at the end of the day, the government is elected to take on that responsibility. Here we will have a situation where it is determined by a team who are not accountable to the public of South Australia. They are accountable to the government that appoints them, but they are not accountable to the people of South Australia. They will have the power for two weeks, or up to a month, without any impediment to the powers under section 25 which are very extensive and from which the government sits back.

The government needs to explain to us as a parliament why it is necessary to have this for such a sustained period without their having their hands on it. That seems to me irresponsible at first blush. There may be a good reason for it—and the opposition is happy to hear it if there is one—but, at first blush, I think it is irrational and irresponsible. It is also proposed that the powers be extended. Again the second reading explanation may identify where this would be necessary. I was trying to think of some as I was being briefed on this matter. For example, instead of having the right to be able to remove or destroy only seriously injured animals (in a long list of things that they could destroy), this bill proposes that they can destroy any animal in the declaration period.

I assume that means that, if a dog is suspected of having rabies, under the current declaration the suspected seriously injured animal can be shot and under this power all the dogs in the street can be shot. I am not sure. There may be good reason for it, and it may be an important precaution and a power that is necessary for public health officials to have to protect the public against, in this case, a public health issue.

However, we must remember that this power is being extended for all events. So, it could be a fire, a flood, an invasion from Victoria, or whatever, and the government wants to change that to not only the seriously injured ones but all animals. I assume that relates not only to pets but also to stock. Our quarantine laws overlap this in some regard, in the sense of stock diseases, and I am sure that there are members of the house who can tell us about foot and mouth disease and all sorts of things and the importance of protecting, in that instance, the value of livestock and the livelihood of many people. At times, that means the sacrifice of a whole herd or flock to protect the core. That is one of the sacrifices that sometimes has to be made in those circumstances. So, I can envisage situations where that may be needed. I just note that that is being extended.

I have not heard of the swine flu virus being found in any other animal yet. It may have been and I may have just missed that. However, this legislation (not just commonwealth legislation) would provide the power to be able to destroy all pigs or animals in a particular suburb, region, country zone or council area if the department head, Dr Sherbon, thought it necessary. My interpretation of this legislation is that they would be able to do so.

The other measure that is being sought is to be able to carry out or cause to be carried out excavation or other earthworks. I am not sure what that relates to. Clause 9(1)(bb) relates to being able to take control over any particular asset and/or destroy any building structure, and so on, and we are going to add in 'carry out any excavation or earthworks'. Again, I would have thought that, in the course of being able to do anything that is necessary to carry out those things, excavations or other earthworks would be part of it. Bulldozers are frequently brought in for fires and floods, and so on, as a mechanism or tool to provide a firebreak or to build a wall or a dam for floodwaters. I do not quite understand why that is there, but we have no objection to it.

An interesting new addition relates specifically to health and transmission of disease with respect to people. What is proposed here is that, rather than just having the power to direct a person to remain isolated, whether it is home detention or otherwise, they are to be kept separate from others, and the like.

I want to place on the record how pleased I am that, in a situation like we have at the moment with swine flu, people are cooperating, as you would expect. They are being asked to do certain things but they do not need to be ordered or tattooed or instructed or issued with directions. They are being compliant, because it is in their interest and also that of their family, neighbours, and so on, that they do so. They are doing the right thing, and that is great. However, one always has to prepare for the fact that some people will disobey what would be seen on the face of it to be a reasonable direction in the circumstances. For example, if a child is identified as being a carrier of a virus and the health officials think that it is important that that child be isolated from others, they may direct that the child be kept in a particular facility and that only authorised officers should service the child and that family must be removed.

A parent who may be concerned for the physical and emotional wellbeing of that child may object to that and say, 'No, irrespective of whether I might become contaminated, I want to be in there with the child,' or 'She is asthmatic,' or 'She has other conditions and I want to be there to help her and keep her calm.' So, situations can arise where the thinking of a public health official, who is concerned with the child and the public at large, is not necessarily matched with the thinking of a close relative, and they may be tempted to disobey what would otherwise be a reasonable instruction.

Bear in mind that we should take into account that we are debating this in the clear, calm light of day, not in the midst of a disaster when people may make decisions and conduct themselves differently because it is an emergency. So, we have to appreciate that people will make decisions that are not always in the interests of others, that could cause harm to others, in a situation where they are distressed, sick, frightened, etc.

The government proposes that all of these powers can be introduced where the person is a suspected carrier (not just an identified carrier) where there is a possibility of it. The government has added in the direction clauses regarding people remaining isolated, etc. the words 'to take other measures to prevent the transmission of a disease or condition to other persons'. That is pretty broad. I understand the government's intention here; I do not have any objection to it. Again, quite probably, it is already covered but, if it is not, this is the abundance of caution.

I suppose they could have said to a person suspected in the opinion of one of the authorised officers rather than these sort of waffly words that go around it but, nevertheless, they have decided to take the broad approach, and I suppose it is just important that the parliament understands that this opens up a whole new group of people who come within the gamut of being able to be detained, directed, decontaminated, sprayed down, squirted down, to have their water supply cut off, the house destroyed, etc. It adds a whole new group in there, and I just want the parliament to understand that potentially that can occur, and it is very clear that it can occur.

There is also provision for shutting off and disconnecting. To me, this is pretty stupid because they have decided that instead of just having the power to shut off or disconnect, they want to be able to say that they can connect, reconnect, disconnect or shut off. I would have thought that that is going overboard. Of course, there is a power to shut off and, surely, it is implicit that you can turn it back on. It seems to me to be silly. However, we are not going to stand in the way of that.

There is a new provision to require a person to furnish such information as may be reasonably required in the circumstances, other than information that may be required to be furnished under section 6 (the essential services). I will not go into the detail of what is there, but this is basically to get people to answer questions and disclose information. I am yet to be given some other explanation for this. I can only imagine that this is to cover people, for example, who might be coming from another region so that they would be obliged to disclose who they had travelled with and where they had travelled, even if it is in circumstances where it might cause them embarrassment or a breach of something. For example, they could be on work duty travelling in an area where they should not have been, and having a bit of a holiday along the way, or they could be with someone they should not be with; I am just trying to hazard a guess as to what the case might be.

What the government is trying to do is make sure that in a state of emergency members of the public have to cooperate; they have to answer those questions as to where they might have travelled and with whom they may have come into contact. I do not necessarily mean in some intimate way, but what restaurant they may have visited and where they may have potentially exposed others to risk. Again, on the face of it, that seems reasonable.

Now we come to another new power, bearing in mind that the other provisions are really just expansions or clarifications of what already exist. The new power means that, essentially, if the chief medical officer advises the state coordinator, and he or she then forms the opinion that the emergency is so bad or of such a magnitude that the demand for medical goods or services cannot be met without contravening the laws of the state, the state coordinator may authorise the officers to break the law to deliver the necessary requirements.

In terms of disasters, it would be obvious that you would not be allowed to enter an earthquake area and loot somebody's house. While you cannot steal, you will not get arrested for jaywalking to get across the street to help somebody who needs assistance. Obviously, there are circumstances where rules and laws, which we otherwise comply with in our normal day-to-day living, become subservient to the higher need to protect people, and they certainly should be.

However, here we have carte blanche. If the state coordinator, after receiving advice, thinks it is necessary for officers to break the law, they can do so. I think that is too broad, although there may be some justification for it. It may be that those responsible for drafting the measure had not given this a lot of thought—and that is no reflection on them—or did not have time to come up with something more specific. However, that provision, along with new clause 26A, which is a modification of the Controlled Substances Act, is far too broad, and I place on the record my concern about this.

New clause 26A allows the minister (as distinct from the chief medical officer) in this instance to ignore the provisions of the Controlled Substances Act during the declaration period in relation to even an incident let alone a disaster or emergency, or when in their opinion it is necessary or desirable to do so. So, it does not even have to be during the declaration; it can be at a different time. It may be that the declaration period has expired, for example, and the officer in question still thinks it is reasonable to be able to get around the provisions of the Controlled Substances Act. That act, among other things, sets out rules, quite properly, as to who can handle, prescribe and administer legal drugs, as well as specifying those illegal drugs that cannot be distributed.

Having a very important role in our legislative management, it is a piece of legislation that recognises that certain drugs can be very dangerous in anyone's hands. Other drugs need to be properly and carefully administered because they can be dangerous in inexperienced or untrained hands, and certain training needs to be undertaken in order to administer this provision correctly.

Debate adjourned.


[Sitting suspended from 13:00 to 14:00]


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