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Legislative Council - Fifty-First Parliament, Third Session (51-3)
2009-06-04 Daily Xml
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STATUTES AMENDMENT (PUBLIC HEALTH INCIDENTS AND EMERGENCIES) BILL

Second Reading

Adjourned debate on second reading.

(Continued from 2 June 2009. Page 2416.)

The Hon. DAVID WINDERLICH (12:23): I rise to support the second reading of the bill and to briefly indicate that, while I am generally supportive of the bill—it clarifies a range of powers that will apply in the case of public health emergencies, and those powers are obviously necessary—as is my general inclination with the exercise of any great power, I will be examining it closely and listening to the debate to see whether there is any need for transparency or oversight or other checks and balances on the use of those powers.

The Hon. G.E. GAGO (Minister for State/Local Government Relations, Minister for the Status of Women, Minister for Consumer Affairs, Minister for Government Enterprises, Minister Assisting the Minister for Transport, Infrastructure and Energy) (12:24): I thank all honourable members for their important contributions. In response to questions about the avian influenza, I can assure members that planning has continued in the Department of Health and across government. It should be noted, however, that almost all human cases of avian influenza have had close contact with infected poultry, usually from their own flocks. However, for the H1N1 virus there is person-to-person transmission.

The measures before the chamber today have been brought forward at this time because of the emergence of the H1N1 Influenza 09 virus (swine influenza) and the lack of knowledge, particularly when it first emerged, about where it was going and the risks of its becoming a pandemic. The Director-General of the WHO raised the level of influenza pandemic alert from phase 4 to phase 5 on 29 April 2009. Phase 5 is a human-to-human spread of the virus, with community level infection into at least two countries in one WHO region.

Thankfully, as events have unfolded and there is a clearer picture of the illness in Australia, while it is readily transmissible, it appears so far to have been relatively mild in Australia and, thankfully, people who have had it have recovered very quickly. However, these viruses do change their make-up, and the expert advice is that we need to continue to be vigilant about it and be able to respond, and the legislation is one part of the armoury to enable us to respond.

The response to a public health emergency needs to be proportionate. The bill provides for such a response, and we believe that the opposition amendments do not. Members may have noted comments by the Queensland Minister for Health at the weekend. A public health emergency was declared under Queensland's public health emergency powers to force the operators of a cruise ship terminal to allow the Pacific Dawn to dock. The operators of the terminal did not want the ship brought into the terminal.

The Queensland health minister indicated that it was a significant step to take, which he would rather not have had to take, but that it was necessary to ensure the cooperation of the port operators. The point remains, however, that the legislation was in place to enable that step to be taken, however reluctantly that was.

The matter of emergency officers was also raised by the opposition. There is a need to have such officers appointed under the proposed public health provisions to assist the public health response. There would not be an army of such officers. It is expected that a limited number of persons would be appointed—for example, the department's senior public health officials. However, in circumstances where there was a significant public health emergency affecting a large part of the population, it may be necessary to appoint a wider group of emergency officers, with conditions on their appointment spelling out those limitations.

For example, in a country community where a large number of people are affected by an influenza pandemic there may be a need to appoint medical officers or senior nursing personnel as emergency officers to give them the powers to direct people into quarantine. This could, in some circumstances, extend to para-professionals, as mentioned in the minister's second reading explanation. This reference was intended to encompass a range of personnel (such as medical students, physician assistants and allied health assistants) where, if the situation rapidly escalated in clinical severity and magnitude and the health workforce became stretched and there was a need to bring in additional people to assist, for example, in flu clinics, their level of training makes them capable of functioning in that capacity and they could be authorised and supported to do so under the clinical governance structure of such clinics. I commend the bill to the council and I look forward to the committee stage.

Bill read a second time.

Committee Stage

In committee.

Clause 1.

The Hon. J.M.A. LENSINK: I move:

Page 3, line 3—Delete 'Public Health Incidents and'

I will speak broadly to all the amendments as most of them are consequential. I will treat this as a test clause. As I stated in my second reading contribution, the Liberal Party agrees with the expansion of tasks of emergency officers, which is clause 9 of the bill. It also agrees with the expansion of 'emergency' to include events which are outside the state, which is clause 4, and I think that those are fairly self-evident. We do believe that the bill takes too broad an approach in that it has not identified specific aspects of the acts which are to be amended; rather, it takes a very broad-brushed approach.

I think that this reflects that this bill was introduced in an opportunistic manner rather than refining the bill to amend certain aspects of certain acts. The bill is very broad in its scope. Amendment No. 5 relates to the Controlled Substances Act, and I will treat that one separately. All the amendments, other than amendment No. 5 in my name, establish new powers for Health to declare incidents, and, in so doing, enables it to recruit health staff to perform roles in emergencies. While on face value this might make sense, I would like to draw to the attention of members what these powers are in that, obviously, health staff would be required to perform health duties whereas these powers are, perhaps, what one might consider to be more in line with police officers, and the like.

I will refer to the Emergency Management Act under which officers can already be appointed. The powers that are provided to those officers include breaking into buildings, taking possession and control over land and destruction of any building, structure, vehicle, vegetation and so forth, which are really not what one would normally consider to be the duties of health staff. In relation to some of the potentially foreseeable circumstances in which there may be a health emergency, for example, at a flu clinic (and I think that the government has mentioned that it would consider establishing flu clinics), one could foresee the scenario where a doctor or a nurse might be dealing with very hysterical people who really should be managed by people who have experience in taking charge of those situations.

Rather than that conflicting with their health duties, we believe they should be enabled to continue to perform health tasks and allow those jobs to be done by people who are more suitably emergency services staff. I move the amendment and indicate that the rest of them, apart from amendment No. 5, are consequential. This will be a test clause.

The Hon. G.E. GAGO: The opposition has filed a number of amendments and the government opposes all of them, except No. 5. The amendments, we believe, will emasculate the bill, and therefore we oppose them. The scheme within the bill maintains the Emergency Management Act 2004 (EM act) as the principal overarching legislation for the management of a state emergency. It provides an additional mechanism to respond to public health incidents or emergencies under the Public and Environmental Health Act 1987 (PEH act), without needing to seek declaration under the Emergency Services Act until such time as it may be required.

The bill enables a two-staged approach from an emergency management perspective. In the initial stages, health, with its expertise and responsibility to manage a health issue, will manage the response. If the situation escalates in magnitude, such as a fully blown whole of state emergency response is necessary, under the EM act the state coordinator would be approached, seeking a declaration under the Emergency Management Act. This would ensure a coordinated approach to whole of government strategic decision making and would bring in a range of other agencies, where needed.

The Commissioner of Police is the state coordinator under the EM act. These proposals have been developed in consultation with SAPOL and SAPOL supports them. SAPOL does not support removing specific provisions by which public health incidents and emergencies can be declared without seeking to invoke the whole of government emergency arrangements that come into play with the declarations under the EM act, which is what is being proposed by the opposition's amendments.

The Hon. A. BRESSINGTON: I must say that I was a little confused at the beginning of this; that is, the relevance of the previous act to what we are amending now. However, I did take the time to contact assistant commissioner Bryan Fahy, who, I believe, is the state controller for the State Emergency Service. I will put his response on the record, as follows:

Further to our discussion yesterday, this email is to confirm SAPOL support for the proposed omnibus legislation currently before Parliament regarding Statutes Amendment (Public Health Act Incidents and Emergencies) Bill.

Rationale for such support is primarily based on community reassurance and, ensuring clear delineation of responsibility and accountability for the lead agency involved in health issues, being the Department of Health. That is, the proposed legislation identifies that an issue regarding public health should be dealt with firstly in a preventative manner, by the appropriate agency before consideration is given to enacting the State's high level emergency management arrangements.

Emergency Management Act activation with its commensurate authorities relies on a formal declaration by the State Coordinator or Governor. A decision to enact this high level legislation is a serious matter and unlikely to occur in a build up to an incident where matters such as obvious emergency services response, potential economic impact, and community concern are not apparent.

The proposed legislation provides the health agency with the right tools to fulfil their responsibilities independent of the Emergency Management Act, but with the safeguard when the incident is beyond the capacity of the primary agency, then the broader response and coordination legislation could be enacted. The current legislation within the Public and Environmental Health Act 1987 places some restrictions around the ability to act quickly during a health incident.

A similar approach to having the 'right tools for the job' is found within the Fire and Emergency Services Act, whereby those key agencies are provided with powers/authorities kindred to the Emergency Management Act to enable those agencies to independently fulfil their responsibilities prior to an enactment of the Emergency Management Act.

This letter basically cemented my support for the government's bill. However, I do flag that I will be moving an amendment requiring a declaration from the minister to act to take it to the next level. I think keeping that with ministerial responsibility and accountability is important, especially in times of crisis, and in that way the general public is aware that the minister has his or her finger on the pulse in such matters. I also indicate that, because I will support the government's bill, and based on this letter from assistant commissioner Fahey, I will not support the Liberal Party's amendments.

The Hon. DAVID WINDERLICH: I oppose the first amendment.

The Hon. R.L. BROKENSHIRE: Family First will support the government on this bill. We have done some homework on it. We must look after our community when it comes to health care. I do not believe it is a political issue but an issue that has to be addressed. It is better to be over the top with things like this than have a real problem. Prevention is better than cure.

I also put on the public record that we checked with some government agencies, and the advice we received is that government agencies put this up as a group of government agencies to the minister, so it was an initiative of the people who have the day-to-day on the ground responsibility for health and well-being. I do not see any politics in this at all but rather something that is important.

Amendment negatived; clause passed.

Clauses 2 and 3 passed.

Clause 4.

The Hon. DAVID WINDERLICH: I refer to the definition of emergency. The bill reads:

emergency means an event (whether occurring in the state, outside the state or in and outside the state) that causes or threatens to cause the death of or inquiry or other damage to the health of any person or the destruction of or damage to any property...

There is no qualification such as 'significant' or 'major'. Something like 'the destruction of' or 'damage to any property' sounds like the explosion of a backyard toilet could trigger the emergency powers of the state. Why is there no qualification, especially as later in the bill it talks about public health incidents and emergencies, where it has qualifications such as 'major emergency' or 'a disaster'? It does use some sort of hierarchy there, and I am just wondering why there is no hierarchy at all in the definition of 'emergency'.

The Hon. G.E. GAGO: I have been advised that the determination of the degree of significance of an emergency, or the qualifiers of the significance of an emergency, are dealt with in other legislation. For instance, there are provisions in the Emergency Management Act that classify the categories of significance. Also, there are provisions relating to incidences and emergencies within the Public and Environmental Health Act which I think judge the significance of the length of time something is in place. So, it is dealt with but within other legislation.

Clause passed.

Clauses 5 to 10 passed.

Clause 11.

The Hon. J.M.A. LENSINK: I move:

Page 5, lines 33 to 36 [clause 11, inserted section 26A(1)]—Delete subsection (1) and substitute:

(1) The minister may, by notice in the gazette, modify the operation of section 18, 26 or 31 of the Controlled Substances Act 1984 for the duration of the declaration of an identified major incident, a major emergency or a disaster if satisfied that it is necessary to do so in order to meet—

(a) the demand for drugs for medical purposes arising from the incident, emergency or disaster; or

(b) the ordinary demand for drugs for medical proposes despite interruptions to medical services or supplies or other difficulties arising from the incident, emergency or disaster.

The current provisions within the bill insert new section 26A, which would have the effect of the minister being able to modify the operation of the Controlled Substances Act, which is a substantial act of some about 70 sections. That act regulates or prohibits the manufacture, production, sale, supply, possession, handling or use of certain poisons, drugs, therapeutic and other substances, and of certain therapeutic devices. That is quite a substantial power, and we believe that should be qualified.

In effect, this amendment limits the impact of sections 18, 26 and 31 of the Controlled Substances Act. They are the areas which the minister, in his second reading contribution, indicated were the provisions that the bill was, in effect, targeting. So, rather than giving such broad sweeping powers, which I think, if limited, protects the minister in some way from having that power, it will assist the minister to not go beyond the scope of what was intended.

The Hon. G.E. GAGO: The government supports the amendment. We believe that it clarifies the circumstances and provisions under which modification to the Controlled Substances Act can occur, and it articulates the circumstances which were in mind when the clause was drafted.

Amendment carried; clause as amended passed.

Clauses 12 to 23 passed.

Clause 24.

The Hon. A. BRESSINGTON: I move:

Page 9, line 10 [clause 24 (3), inserted definition of Public Health Emergency Management Plan]—After 'Chief Executive' insert:

and approved by the Minister.

This amendment seeks to require the CE of health to obtain the approval of the minister before making a declaration and also to require, as a consequential amendment, the chief executive to obtain the minister's approval for the Public Health Emergency Management Plan because, under new section 37C, the plan may contain guidelines setting out circumstances in which the declaration should be made.

In practice, this would occur. The matter would have been discussed by the State Emergency Management Committee, of which the Commissioner of Police, as the State Coordinator, is a member and also the Emergency Management Council of cabinet of which the minister is a member.

The Hon. G.E. GAGO: The government supports the amendment. We think it is a sensible amendment in terms of requiring the appropriate authorisation of the minister responsible.

The Hon. J.M.A. LENSINK: The Liberal Party also supports the amendment. The provisions as they exist in the act left the original declarations with the CE. We believe it is appropriate that this ought to also have earlier and closer scrutiny by the minister as the elected person within the executive government.

Amendment carried; clause as amended passed.

Clause 25 passed.

Clause 26.

The Hon. A. BRESSINGTON: I move:

Page 10—

Line 21 [clause 26, inserted section 37A(1)]—After 'may' insert:

, with the approval of the Minister,

Line 34 [clause 26, inserted section 37B(1)]—After 'may' insert:

, with the approval of the Minister,

The amendments serve the same purpose as my earlier amendment.

Amendments carried; clause as amended passed.

Remaining clauses (27 and 28) and title passed.

Bill reported with amendments.

Third Reading

Bill read a third time and passed.


[Sitting suspended from 12:55 to 14:18]


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