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House of Assembly - Fifty-Fifth Parliament, First Session (55-1)
2022-05-19 Daily Xml
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South Australian Public Health (COVID-19) Amendment Bill

Final Stages

The Legislative Council agreed to the bill with the amendments indicated by the following schedule, to which amendments the Legislative Council desires the concurrence of the House of Assembly:

No. 1. Clause 3, page 3, after line 2—Insert:

90AB—Principles

The principles set out in section 14 (other than section 14(6), (7) and (9)) apply for the purposes of this Part in the same way as they apply to Parts 10 and 11.

No. 2. Clause 3, page 3, after line 29 [clause 3, inserted section 90B]—

After subsection (3) insert:

(4) The Minister must, before the end of the 7th day after a direction is issued under this section, cause a document or documents setting out the relevant health advice for the direction to be published on a website determined by the Minister.

(5) In this clause—

relevant health advice for a direction means advice provided by the Chief Public Health Officer or by other officers of the Department to any Ministers of the Crown in respect of the issuing of the direction.

No. 3. Clause 3, page 5, after line 14—Insert:

90F—Appeal rights

(1) If a person is subject to a direction under this Part that the person must isolate or quarantine at a place other than the person's place of residence or another location chosen by the person, the person may apply to the Magistrates Court for a review of the direction.

(2) Subsection (1) does not apply in relation to a direction continued in force pursuant to Schedule 1 clause 2 of the South Australian Public Health (COVID-19) Amendment Act 2022.

(3) An application under subsection (1) may be instituted at any time during the currency of the direction (and, subject to subsection (4), more than 1 application may be made while a direction is in force).

(4) If a second or subsequent application is made with respect to the same direction, the Magistrates Court must first consider whether there has been a significant change in the material circumstances of the case and should, unless the Magistrates Court in its discretion determines otherwise, decline to proceed with the application (if it appears that the proceedings would simply result in a rehearing of the matter without such a change in circumstances).

(5) The following provisions will apply in connection with an application under subsection (1):

(a) the making of an application does not suspend the operation of a direction to which the application relates (and the Magistrates Court must not suspend or stay the operation of the direction pending the outcome of the proceedings);

(b) the Magistrates Court must consider whether 2 or more applications by separate individuals may be joined or heard together taking into account:

(i) the extent to which it is impractical or unreasonable for individual applications to be heard separately in view of the number of applications before the court; and

(ii) the extent to which there are questions of fact or law that are sufficiently similar or common across a series of applications; and

(iii) the extent to which the directions across a series of applications are the same or similar; and

(iv) such other matters as the court thinks fit in order to best manage the applications in the circumstances;

(c) the Chief Magistrate may make such orders as the Chief Magistrate thinks fit (either in a specific case, in a specific class of cases, or generally with respect to applications under subsection (1)) to assist in dealing with the management and hearing of applications under subsection (1) (and any such order will have effect according to its terms).

(6) Subject to complying with subsection (4), the Magistrates Court may, on hearing an application under subsection (1)—

(a) confirm, vary or revoke a direction;

(b) remit the subject matter to the person who gave a direction for further consideration;

(c) dismiss the matter;

(d) make any consequential or ancillary order or direction, or impose any conditions, that it considers appropriate.

(7) The Magistrates Court may only revoke a direction under subsection (6) if satisfied that the direction is no longer reasonably necessary in the interests of public health.

(8) The Magistrates Court is to hear and determine an application under subsection (1) as soon as is reasonably practicable.

(9) A party to proceedings on an application under subsection (1) may appeal against a decision of the Magistrates Court under subsection (6).

(10) An appeal under subsection (9) will be to the District Court.

(11) The following provisions will apply in connection with an appeal under subsection (9):

(a) the making of the appeal does not suspend the operation of a direction that has been confirmed by the Magistrates Court and the District Court may, as it thinks fit, make any other order with respect to the operation of any other direction that has been varied or revoked by the Magistrates Court (including, if the District Court thinks fit, to reinstate or vary an original direction on an interim basis pending the outcome of the appeal);

(b) the District Court must consider whether 2 or more appeals by separate individuals may be joined or heard together taking into account:

(i) the extent to which it is impracticable or unreasonable for individual appeals to be heard separately in view of the number of appeals before the court; and

(ii) the extent to which there are common questions or issues across a series of appeals; and

(iii) such other matters as the court thinks fit in order to best manage the appeals in the circumstances;

(c) the Chief Judge may make such orders as the Chief Judge thinks fit to assist in dealing with the management and hearing of appeals under subsection (9) (and any such order will have effect according to its terms).

(12) The District Court may, on an appeal under subsection (9)—

(a) confirm or vary the decision of the Magistrates Court, or substitute its own decision;

(b) make any consequential or ancillary order or direction that it considers appropriate.

(13) The District Court is to hear and determine an appeal under subsection (9) as soon as is reasonably practicable.

(14) An appeal under subsection (9) will be heard in the Administrative and Disciplinary Division of the District Court (but will not be subject to the application of Subdivision 2 of Part 6 Division 2 of the District Court Act 1991).

(15) A person subject to a direction who is a party to proceedings before a court under this section is not entitled to attend those proceedings but is entitled to be represented at any hearing by a person (who need not be a legal practitioner) nominated by them and the court must, if reasonably practicable, allow the person who is subject to the direction to participate in the proceedings by the use of an audio visual link or an audio link.

(16) A court must, in dealing with proceedings under this section, take into account the need to ensure that its proceedings do not unduly hamper the work of public officials in dealing with the COVID-19 pandemic.

No. 4. New Schedule, page 5, before line 15—Insert:

Schedule a1—Related amendment of Parliamentary Committees Act 1991

1—Insertion of Part 5F

After Part 5E insert:

Part 5F—COVID-19 Direction Accountability and Oversight Committee

Division 1—Preliminary

15P—Preliminary

(1) In this Part—

relevant COVID-19 direction means a direction under section 90B of the South Australian Public Health Act 2011, including a direction continued in force as a direction under that section pursuant to Schedule 1 clause 2 of the South Australian Public Health (COVID-19) Amendment Act 2022.

(2) This Part applies in relation to a relevant COVID-19 direction despite any other Act or law to the contrary.

Division 2—Establishment and membership of Committee

15Q—Establishment of Committee

The COVID-19 Direction Accountability and Oversight Committee is established as a committee of the Parliament.

15R—Membership of Committee

(1) The Committee must consist of 5 members of whom—

(a) 2 must be members of the House of Assembly appointed by the House of Assembly; and

(b) 3 must be members of the Legislative Council appointed by the Legislative Council.

(2) Not more than 2 members of the Committee may be members of a political party forming the Government.

(3) A Minister of the Crown is not eligible for appointment to the Committee.

(4) The Committee must from time to time appoint 1 of its Legislative Council members to be the Presiding Member of the Committee but if the members are at any time unable to come to a decision on who is to be the Presiding Member, or on who is to preside at a meeting of the Committee in the absence of the Presiding Member, the matter is referred by force of this subsection to the Legislative Council and that House will determine that matter.

Division 2—Functions of COVID-19 Direction Accountability and Oversight Committee

15S—Functions of Committee

(1) The COVID-19 Direction Accountability and Oversight Committee may report to each House of Parliament if the Committee considers that a relevant COVID-19 direction—

(a) does not appear to be within the powers conferred by the Act under which the direction was made; or

(b) without clear and express authority being conferred by the Act under which the direction was made—

(i) has a retrospective effect; or

(ii) imposes any tax, fee, fine, imprisonment or other penalty; or

(iii) purports to shift the legal burden of proof to a person accused of an offence; or

(iv) provides for the subdelegation of powers delegated by the Act under which the direction was made.

(2) A report of the COVID-19 Direction Accountability and Oversight Committee under this section may contain such recommendations as the Committee considers appropriate.

15T—Disallowance of relevant COVID-19 direction

(1) Subject to this section, if—

(a) a relevant COVID-19 direction has been laid before each House of Parliament in accordance with section 15U; or

(b) there was a failure to comply with section 15U in relation to a relevant COVID-19 direction and the Committee has reported that failure to each House of the Parliament,

the relevant COVID-19 direction may be disallowed by resolution of either House of Parliament and will cease to have effect.

(2) A resolution is not effective for the purposes of subsection (1) unless—

(a) in the case of a relevant COVID-19 direction that has been laid before the House in accordance with section 15U—the resolution is passed in pursuance of a notice of motion given within 14 sitting days (which need not fall within the same session of Parliament) after the direction was laid before the House; or

(b) in the case of a relevant COVID-19 direction that has been the subject of a report by the COVID-19 Direction Accountability and Oversight Committee under subsection (1)(b) —the resolution is passed in pursuance of a notice of motion given within 6 sitting days (which need not fall within the same session of Parliament) after the report of the Committee has been made to the House.

(3) When a resolution referred to in subsection (1) of this section has been passed, notice of that resolution shall forthwith be published in the Gazette.

(4) This section does not apply in relation to a direction continued in force as a direction under section 90B of the South Australian Public Health Act 2011 pursuant to Schedule 1 clause 2 of the South Australian Public Health (COVID-19) Amendment Act 2022.

15U—Tabling of relevant COVID-19 direction

On the making of a relevant COVID-19 direction, the Minister with responsibility for the administration of the South Australian Public Health Act 2011 must, within 2 sitting days, cause a copy of the direction to be laid before each House of Parliament (and the direction is referred by force of this section to the COVID-19 Direction Accountability and Oversight Committee).

Division 3—Expiry of Part

15V—Expiry of Part

This Part expires on the day on which section 90B of the South Australian Public Health Act 2011 and all directions under that section expire.

No. 5. Long title, page 1—After 'South Australian Public Health Act 2011' insert:

, and to make a related amendment to the Parliamentary Committees Act 1991

Consideration in committee.

The Hon. C.J. PICTON: I move:

That the Legislative Council's amendments be agreed to.

The Hon. C.J. PICTON: As we discussed in the previous sitting week, this is an important piece of legislation which has been brought to this house essentially to end the Emergency Management Declaration. That declaration has been in place for the past two years; however, we are clearly in a stage of management of COVID where a significant level of restrictions has been eased. However, there are important baseline restrictions that need to be in place. If the Emergency Management Declaration were to end without the passage of this legislation then we would be in a position where those baseline levels of COVID-19 protections would no longer be in operation.

That would be a significant concern for the management of COVID in our state for making sure that we are protecting vulnerable people in particular. Essentially, what we are left with doing is making sure that we have rules and protections in place for high-risk settings, predominantly aged care, disability care and hospitals. There are also some rules in place in regard to masks in airports. Public transport has also been listed as high-risk. These rules have been in place for some time and understood by the community.

As part of that, we have vaccination requirements in a small number of workplace settings as well, much smaller than I think you see around the country. In addition to that, there are clearly rules in place for people who test positive to COVID and also those people who are identified as close contacts. We have significantly eased the requirements in relation to both over the past few months.

In terms of restrictions for close contacts, they do not need to isolate now if they undertake a set of requirements under the emergency management directions, including the use of rapid antigen tests and the use of masks, etc. People who are identified as COVID-positive do have to isolate for seven days and follow restrictions in the directions. If the emergency management declaration were to end and we did not have this piece of legislation in place, then all of that would disappear. Essentially, this is about making sure that we have in place the current set of arrangements that we will continue with into the future.

I really want to acknowledge the spirit of cooperation and collaboration that we saw from certain members of the other place, and I particularly want to thank the Hon. Robert Simms and the Hon. Connie Bonaros for their hard work on this legislation and their willingness to work with the government, with the public health officials, to achieve a good outcome for this legislation that will enshrine in place important safeguards for the management of COVID-19 in this state. They both worked very hard on amendments. We are now debating that consolidated set of amendments that has been agreed to by the upper house, and I want to thank them for the spirit in which we worked.

I would also like to thank the Hon. Sarah Game MLC, who, in her first couple of weeks in the Legislative Council, has obviously been working hard on this legislation in what is a difficult period in her first few weeks in parliament. She clearly filed a whole series of amendments and got advice. We had a number of discussions. We were not able to reach agreement on a whole range of matters that we discussed but we were able to reach agreement on some matters, and I want to thank her for her work as well.

I think it is disappointing that we did not see the level of bipartisanship that we have seen in relation to the management of COVID-19 over the past two years with the opposition. I think it is disappointing that that has now deteriorated in the past couple of days to the point where yesterday we saw the Leader of the Opposition, in one of the most undignified press conferences I have ever seen in my time in parliament, talking about the Premier being a dictator and this being the Dark Ages. This could not be further from the truth.

This is a piece of legislation that codifies what is currently in place now. It does not give powers to the government in terms of putting in place lockdowns or hospitality restrictions or broad mask mandates—a lot of the things we have seen put in place by the executive under the emergency management directions over the past few years. The penalty provisions are exactly the same as those the previous government had in place for the past two years and have been very wisely used by Health and police over that time.

To do this sort of dog whistling to the anti-vaxxer movement, as we have seen over the past 24 hours I think, has been incredibly unfortunate. I hope that does not continue. I hope we return to a spirit of bipartisanship in relation to the management of COVID-19 because I think it is incredibly important for the management of this pandemic, which has not gone away. We still need to continue the management of the pandemic in this state.

In terms of the amendments that have been agreed to between the government and the crossbench in the other place, these do take the bill further to provide additional safeguards. Firstly, they add principles that should be considered in relation to how the COVID-positive and close contact rules will be set. Secondly, they introduce an appeal mechanism for people who are asked to quarantine not at a place of their choosing or at their home, which therefore would be at a place such as a medi-hotel or other type of quarantine facility. This protection would enable an appeal mechanism to be available to them. Obviously, that would now impact a very small number of people, but it is another important protection that has been added.

Importantly, as well, there is now going to be an oversight committee of COVID-19. We previously had a COVID-19 committee from the Legislative Council that was in place in the previous parliament. The previous government did not want to have this house involved in that committee. This will now be a joint committee of parliament that will provide oversight in relation to COVID-19 matters, which I think is a good thing, so two members from this house will be involved in that committee.

Importantly, if there are new restrictions that have to be put in place in relation to COVID-positive people or close contacts under the new legislation, then there will be the ability for either house of parliament to disallow those requirements. There will also be the requirement to provide and table the public health advice, in relation to those requirements, before the houses.

I think we have come a long way in terms of addressing concerns and issues that have been raised by the crossbench. We now have a number of additional protections in relation to this bill, which again I stress is a limited bill. This is very different now from what is in place around the country. Mostly around the country, it is still emergency powers that are being used. Even in Victoria, where there is a pandemic piece of legislation, the executive has much broader powers to be able to put in place whole sweeping restrictions that we could not put in place here.

I want to stress again that if we are in a position where we need to put in place lockdowns, which I hope never have to happen, or hospitality restrictions—as we saw put in place under the previous government in January—if we did have to look at anything like that, that would not be possible under the legislation we are debating now. It would have to be a consideration of a new emergency declaration either under the Emergency Management Act or the Public Health Act as have been used previously.

I endorse the bill and the amendments to the house. I want to thank again the crossbench and the Legislative Council, and I want to thank all our officers in the department for their hard work on this, particularly Professor Spurrier and Deputy Chief Public Health Officer, Chris Lease. I hope that this will enable us to have in place those baseline restrictions where we can end the emergency management declaration that has now been in place for two years and two months.

Mr SPEIRS: I will speak only briefly because the opposition believes, that this is important legislation and ought to be transmitted into the statute book as quickly as possible. I think it is important from the outset to be really clear that the Liberal opposition supports the move out of the major emergency declaration—

The Hon. C.J. Picton interjecting:

Mr SPEIRS: There may be interjections from those opposite, but of course we have just had a very reasonable speech from the health minister who talked about the reasonableness and how good these amendments were. Well, if these amendments were so good why were they not in the original bill that was presented to the opposition and to our state's parliament?

We made it clear from day one that we supported the sentiment of this bill. We supported that move from a major emergency declaration into public health legislation for the next phase of the management of the COVID-19 pandemic, but we felt that it had to be backed up by a step-down in some of the penalties.

We had some concern about some of the principles. We wanted to see some sort of sunset clause or end date—we felt that was important—and we thought the penalties should be stepped down. What we were after was not extreme. It was not unusual. It was simply part of what we would see as the holistic transition from the major emergency declaration to the day-to-day administration of COVID. The approach—

The Hon. C.J. Picton interjecting:

Mr SPEIRS: The health minister is again reminding me of what I said yesterday, which was true. I stand by the fact that I feel it is a dictatorial approach to have these heavy-handed penalties that are out of step with other jurisdictions across our nation. It sees us move from the emergency declaration to the public health administration in one way, but that is not backed up by the penalties, practical or symbolic as they may be.

The bill that was presented to the parliament, which the opposition were asked to tick and flick, was in a state that we did not agree with. To be honest, if we had not pushed back, there would have been no opportunity for a crossbench deal to be done to make this legislation much better, and we think it is much better. We would have liked to see the penalties reduced in terms of their quantum and their effect, but this is what the parliamentary process is all about. The opposition has a role, the crossbench has a role, the government has a role. We think where we have landed is much better.

I think we have fulfilled our duty as an opposition. I look forward to the government, the South Australian population and particularly businesses, which have done it exceptionally tough during the last couple of years, transitioning to the next phase of the COVID-19 pandemic management, backed up with this legislation. We have got most of the way to what the opposition wanted. We did not get there on the penalties, and that is what it is, but we commend this legislation to the house.

The Hon. C.J. PICTON: Thank you for the indication from the Leader of the Opposition of support for the legislation and in fact commending the legislation to the house, which is absolutely opposite to what he said yesterday. He said yesterday that we are dictators from the Dark Ages, when he is out there virtue signalling and dog whistling to the anti-vaxxer community. Now he is in the house here today saying that he supports the legislation. I welcome the support for the legislation—

Members interjecting:

The CHAIR: Members on my left!

The Hon. C.J. PICTON: —but I think that he should consider retracting his comments yesterday, which I think set back the management and the bipartisanship that has now disappeared after two years of very sensible bipartisan management of COVID in South Australia. We saw Clive Palmer-ish comments from the Leader of the Opposition yesterday, which I think he should seriously reflect on. This is important legislation. We are glad the parliament has now worked together, particularly with the crossbench in the Legislative Council. I commend this to the house, particularly these amendments as well.

Motion carried.

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