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Legislative Council - Fifty-Second Parliament, First Session (52-1)
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SOUTH AUSTRALIAN PUBLIC HEALTH BILL

Committee Stage

In committee (resumed on motion).

Clause 90.

The Hon. S.G. WADE: Could I respectfully suggest to the Hon. Ann Bressington that she might consider withdrawing her amendment in the context of discussions between members with the government to enhance the principles. That would need to be recommitted once the consideration of this bill has been concluded but, if the Hon. Ann Bressington was amenable to that approach, I would be happy to read the amendment on to the record now. No?

The CHAIR: This amendment is in the hands of the Hon. Ms Bressington. I do not know whether she has been part of the discussions but, if she has, then she will decide whether or not she needs to withdraw her amendment.

The Hon. A. BRESSINGTON: Yes, I am agreeable to that, so I withdraw my amendment.

Members interjecting:

The CHAIR: Order! Let's move along. Let the Chair run the show and we will get a lot better, because you get confused, you start walking around the floor and sometimes I think I am in a dance hall. The Hon. Mr Wade has another amendment (amendment No. 2) to clause 90.

The Hon. S.G. WADE: I think I should inform the Chair that the opposition will not be supporting the passage of this clause until we get a commitment from the government in relation to the amendment that we recommitted at the end of this bill. So, the matter is in the hands of the government and the chair; but that is the state.

The CHAIR: It is always in the hands of the Chair. I really do not know what we did before you were elected to this place.

The Hon. G.E. GAGO: The government has seen the amendment the Hon. Stephen Wade has proposed. We support that amendment and give a commitment to recommit this section of the bill at an appropriate time to deal with it.

The Hon. S.G. WADE: I thank the minister for her patience and for her guarantee. I move:

Page 56, after line 1—Insert:

(3) An authorised officer may only exercise a power of direction under section 25(2) of the Emergency Management Act 2004 applied under subsection (1)—

(a) that the person be isolated or segregated from other persons; or

(b) that the person must remain in a particular place,

if—

(c) there is no cause, or no reasonable cause, to act under Part 10 or under the Mental Health Act 2009; or

(d) there are significant public health advantages in acting under the Emergency Management Act 2004 as applied under this section rather than under Part 10 or under the Mental Health Act 2009.

(4) If—

(a) a person is subject to a direction under section 25(2) of the Emergency Management Act 2004 applied under subsection (1)—

(i) that the person be isolated or segregated from other persons; or

(ii) that the person remain in a particular place; and

(b) an authorised officer is satisfied that the person is no longer an immediate risk to public health, or is no longer at risk on account of a public health incident or public health emergency, (as the case requires),

the direction must be revoked in relation to the person.

(5) If—

(a) a person is subject to a direction, or a series of directions, under section 25(2) of the Emergency Management Act 2004 applied under subsection (1)—

(i) that the person be isolated or segregated from other persons; or

(ii) that the person must remain in a particular place; and

(b) the direction has effect, or the directions together have effect, for a period exceeding 24 hours,

the person may apply to the Magistrates Court for a review of the direction or directions.

(6) An application under subsection (5) may be instituted at any time during the currency of a direction (and, subject to subsection (7), more than one application may be made while a direction is in force).

(7) If a second or subsequent application is made with respect to the same direction or directions, 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).

(8) Subject to complying with subsection (7), the Magistrates Court may, on hearing an application under subsection (5)—

(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.

(9) The Magistrates Court may only revoke a direction under subsection (8) if satisfied that the direction is no longer reasonably necessary in the interests of public health.

(10) The Magistrates Court is to hear and determine an application under subsection (5) as soon as is reasonably practicable.

(11) A party to proceedings on an application under subsection (5) may appeal against a decision of the Magistrates Court under subsection (8).

(12) An appeal under subsection (11) will be to the District Court.

(13) The District Court may, on an appeal under subsection (11)—

(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.

(14) The District Court is to hear and determine an appeal under subsection (11) as soon as is reasonably practicable.

(15) An appeal under subsection (11) 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).

(16) In this section—

Magistrates Court means the Magistrates Court of South Australia.

I would suggest to the committee that this amendment has three parts, and to assist the committee in the consideration of the amendment, I propose to address them as three themes. The first theme is about preserving other regimes, and this is dealt with by subclause (3) in particular.

Part 11 of the South Australian Public Health Act deals with the management of significant emergencies, but health authorities already have access to two sets of detention powers for emergency-type situations (for example, controllable notifiable diseases, under clauses 77 to 99 of this bill) and the Mental Health Act 2009. The regimes have been developed with the particular context of those health challenges in mind.

I appreciate that there is no intention on the government's part that public health emergency provisions under part 11 would be used as an alternative to the primary regimes; however, that is clearly a risk under the current wording of the act. In fact, in a letter to me dated 4 March 2011, minister Hill said:

Advice from the Public Health and Clinical Coordination Division of the Department of Health is that directions for isolation and/or segregation can apply to individuals, classes of persons or entire geographical areas to contain immediate public health threats that may be the subject of a declared emergency.

Let me underscore the key quote: the minister confirmed that directions for isolation or segregation can apply to individuals. My concern is that it is not appropriate for public health authorities to have access to public health emergency provisions in the context of needing to deal with an individual threat that does not represent a public health threat. In fact, minister Gago herself underlined this risk in the debate in this committee on Tuesday night when she was addressing the Hon. Ann Bressington's amendments. She said:

...the bill before us allows us powers that focus on a much smaller scale specific health emergency, whereas I have been advised that the Emergency Management Act provides much broader, if you like, umbrella provisions. So, it would mean that a small contamination would have to escalate into a much larger emergency before it could actually trigger the Emergency Management Act...

However, in defending the government's proposal for mandatory treatment, the minister said:

You might not be able to detain a person, though, forever. We have had the situation with the HIV chap who had a very strong personal view about his rights to have unprotected sex. How long does the state have the right and the responsibility to detain, feed and care for, etc...

The minister was arguing for mandatory treatment, but she was also highlighting the point that there is nothing in this legislation that means it will not be available against a person.

We will deal with the issues of judicial review shortly, but we have a very strong view that the Mental Health Act and the controlled notifiable diseases provisions and so forth were developed very carefully with those particular situations in mind. It would be inappropriate to create a situation where a health bureaucracy was finding it difficult to tick all the boxes under those regimes and instead resorted to public health emergencies.

I know the government will stand up and tell us that we are reflecting on the integrity of public officers and it would never be done. However, with health officers faced with what they believe is a significant risk and legislation which they believe this parliament has put on them which they believe is inconvenient, I have no doubt that they would use powers that could be read to give them power to deal with an individual situation.

So, this amendment says that if a person is proposed to be isolated or segregated from other persons, or that the person must remain in a particular place, the powers under this act cannot be used if there is a cause or a reasonable cause that the controlled notifiable provisions or the Mental Health Act provisions should be used.

There is a caveat to that, namely, if there are significant public health advantages. In other words, I am quite open to the possibility that a public health emergency could start with one person. That is quite conceivable and, in a context of a particular incident, if officers can justify, to themselves even—it is not as though they have to get the sign off from anyone—that there are public health advantages in using this act, then the opposition is willing for them to use it. Our view is that those particular regimes have been established for a purpose and we should protect them from being circumvented by a potential loophole, so I submit that subclause (3) is useful.

Continuing on with clause 4, it relates to the duration of the order. If a person is subject to a direction under section 25(2), and let us say that the direction is time limited and then for some reason the emergency passes (I lose track of the acronyms used for different viruses, but one recently was not as bad as it was expected to be), and perhaps an order was put on that was longer than in fact the period of risk, this clause would put a duty on the officer to withdraw the direction if it was no longer necessary in terms of the risks to public health. We believe it is a sensible amendment.

The government might well say that it is implicit in the act, that if the emergency is passed then the direction should be removed. However, we believe that it is good to state it in black and white and, even if a direction has not been lifted under the bill, the officer is under an obligation to revoke the direction. It may well be that a legal representative of the person subject to the order, or the person subject to the order themselves, will remind the officer of their duty.

Sections 5 to 16 of my amendment relate to judicial review. The genesis of the party of which I am a member is in the protection of the rights of individuals, so we are always dubious of provisions that could be used to isolate, segregate or detain people without some form of external oversight.

In the briefings with the officers in relation to this bill we were told that there was no need to have a review process here because we could have trust and confidence in the public officers. But I remind this parliament that we have a number of provisions in state legislation that relate to powers to detain people. I am yet to find one of them, including in health legislation, that does not provide for some element of judicial review. I assure members, considering I am married to a psychologist, that I do not lack trust and confidence in psychiatrists and psychologists dealing with the Mental Health Act.

I assure members that I do not distrust the police when applying the Summary Offences Act. I do not distrust the public health officers when they are using the controlled notifiable disease provisions of this act even, but in all those cases the parliament has felt that it is appropriate that powers that involve serious incursions into people's liberty should be subject to review. Compared with some of those provisions in other acts, the amendment before you today is pretty weak, to be frank. It is a very thin review process. It is a process where you can go to a magistrate and have the order reviewed.

Even more unusual, if you like, is that public health officials under my proposal would have a 24-hour free period. In other words, they can put an order on you for a detention and it would only be reviewable if it was for longer than 24 hours. A number of jurisdictions have public health emergency provisions which have appeal provisions, and I am not aware of any that give public health officers the first 24 hours free.

In the context of public health emergencies, the officers suggested that it was unreasonable to think that officers involved in a public health emergency could find the time, if you like, to respond to a direction. First, we are assured that these powers would be very rarely used. Secondly, it will be very rare, I suspect, that we would have isolation, segregation or detention orders imposed on people. These are not everyday events.

The ability of the government to manage an appeal process in relation to a public health emergency is evidenced by the fact that other jurisdictions have them, and I have heard of no reports that they are not working. The issue was raised in the briefings that our original amendment which proposed an appeal to the District Court may have been unworkable because of the difficulty of getting a District Court judge. In that context, we have altered the amendment such that the appeal in the first instance is to go the Magistrates Court, and we have taken the opportunity to do what happens in a number of other jurisdictions and allow for an appeal against the magistrate's order to be made to the District Court.

In the context of how reasonable this is, I will quote from a report from the Centre for Public Health Law on Emergency Powers and Cross-Issues Regarding Outbreaks of Communicable Diseases. It states:

Appealing orders made

As a general rule coercive powers and emergency powers are subject to appeal provisions.

I say: why not ours? In terms of the workability, I have also added specific statements to say that both the Magistrates Court (this is clause 9) and the District Court (clause 14) will be under a duty to deal with matters as soon as reasonably practicable. Having made it more accessible by making it accessible through the Magistrates Court I think will probably more than double the number of judicial officers who would be able to deal with the matter.

I would remind the parliament that this is not a matter of waiting until Monday when the court resumes. Courts under mental health provisions and under controlled notifiable diseases provisions already need to respond to matters out of hours. They do that through the telephone; there is no need for a court to convene in a formal sense. So, I submit to the government and to the council that these provisions are eminently manageable and are, in fact, the least that we should be able to provide for people who are going to be required to be isolated, segregated or detained.

The Hon. G.E. GAGO: The effect of the amendments in subclause (3) is merely to state the obvious, which is that you would only use emergency powers if they were necessary in a declared emergency. That is exactly the point. Subclause (4) also states what is obvious; that is, once a public health risk has passed, the direction to isolate or segregate a person or direct a person to remain in a particular place would be revoked. Once again, the reason for the emergency has passed and there is no need, desire, nor basis to continue such a direction. The remaining clauses of this amendment simply restate the appeal provisions the honourable member has previously presented, although, I should say, this version establishes the Magistrates Court as the first court of appeal.

We believe that this presents significant dangers to the capacity to protect public health in this state during an emergency. The government has already pointed out to the honourable member the risks of diverting vital public health resources to arguing appeals during an emergency when they need to be totally dedicated to containing and controlling the cause of an emergency. In an emergency, there is every possibility that a direction to isolate or segregate, or a direction to remain in place, may be applied not simply to a small number of people but to whole classes of people, or to a population in a particular suburb or community.

We could be facing potentially several hundred appeals occurring during an emergency should this amendment the successful. You can imagine the resources associated with that when they could be better used actually dealing with the emergency. I also note that there is no mention of whether directions continue to have effect during the appeal, and as such, then the court may suspend their operation, raising the risk of the spread of a public health threat. I have already given an example in relation to TB where the window of opportunity is 48 hours. To a court that would be an extremely difficult time frame, I would imagine, for it to be able to work within, particularly if we are looking at large numbers of appeals being dealt with at the same time.

If the opposition truly has the interests of the health of the public at heart, I would urge them to think again about this amendment. These amendments have the effect of putting an individual's liberty above the protection of the public's health. If the resources needed to manage a public health threat are diverted from their primary protective task during an emergency and if their powers are in effect weakened, the potential damage that could be done to our community's health could be profound.

In terms of the honourable member's reference to the paper prepared by the Centre for Public Health Law, I think it is important to be clear about the status of that document. The paper that the Hon. Mr Wade referred to is entitled 'Emergency powers and cross-jurisdictional issues regarding outbreaks of communicable diseases'. It was prepared by the Centre for Public Health Law for the National Public Health Partnership.

This document is simply a discussion paper which, in several places, stresses that it has been prepared to further the discussion and consideration of broad principles and proposals. It is not a policy position as such. It is a contribution by public health experts to further their deliberations. In fact, staff from the Department of Health also contributed to this paper.

The paper was prepared, as I have said, for the National Public Health Partnership in 2006. This body was established by the Australian governments in the 1990s to provide advice particularly to ministers for health. Perhaps the honourable member is unaware of the regard that the former Howard government had for this particular partnership. If he is not aware, I would like to remind him that the Howard government had such a high regard for the National Public Health Partnership's advice that it abolished it in favour of other advisory structures.

As I have said previously, this amendment does not strike the right balance. The government has offered several suggestions for how the honourable member may advance his interest in making public health decisions more transparent and accountable. We offered a balanced approach—a balance between the rights of the individual to liberty and the rights of the community to be protected—and I say again that these amendments do not provide such a balanced approach. Clause 90 needs to be straightforward and simple to undertake and follow, and the opposition's proposed amendment will only serve, we believe, to confuse the public further and therefore we oppose the amendment.

The Hon. S.G. WADE: I want to respond to a couple of points the minister made in relation to the amendment. The minister was trying to suggest to the committee that you can have a situation where the Magistrates Court would somehow interfere with the operation of the powers while it was considering a matter. I draw the committee's attention to proposed subclause (9), which provides:

(9) The Magistrates Court may only revoke a direction under subsection (8) if satisfied that the direction is no longer reasonably necessary in the interests of public health.

So there is an onus on the court to give priority to public health. Secondly, proposed subclause (10) states:

(10) The Magistrates Court is to hear and determine an application under subsection (5) as soon as is reasonably practicable.

The minister also referred to the government's alternative amendments—and I should take the opportunity to thank the government for both sets of briefings with the police and with health. It was certainly helpful to understand the issues better. The amendments that were discussed in that context all related to parliamentary accountability of some form. I think, for example, there was a suggestion that, after 14 sitting days, there would be a report to this house. There might be an investigation by the Social Development Committee, and I think another suggestion was for a review by an independent judicial officer.

I welcome those suggestions from the government, but the opposition would not be supporting them if the government put them because it is not our concern. Parliamentary accountability, or the general accountability of the government for the discharge of public health emergencies or, for that matter, any emergency, is not our current concern. We have seen in the Victorian bushfires and in the Queensland floods that the Australian parliaments are extremely responsive to the need to account for emergencies, and we have no doubt that, with or without those provisions, that accountability would persist.

It gives no comfort to a person who has been inappropriately detained to know that in 14 sitting days, there will be a report going to parliament. We do not want our public health officers bogged down and writing reports that may not even be needed. We want to leave appeal provisions in the act which we hope will never be needed. In every other case where we have had detention powers, we have put in judicial review because if in fact they are needed, they are there. It would give me no comfort to know that, being detained for whatever period I am detained, at least parliament will find out in a couple of months.

The Hon. D.G.E. HOOD: I have a couple of quick questions for the mover. With respect to the amendment, Family First has no problem with proposed subclauses (3) and (4), that is, essentially the emergency itself and the time allocated in the situation but, specifically, the section on judicial review is one that I am struggling with.

I understand—correct me if I am wrong, and maybe the minister can clarify this in a moment—that the time allowed for potential detention is a maximum of 14 days anyway under these provisions. Correct me if I am wrong, but that is my understanding. That is the first issue but, specifically, my questions for the Hon. Mr Wade are more looking for his comment on the fact that, as he would no doubt be aware, there has been some what we might call 'high level' lobbying from the LGA opposing the amendment and also from police and health; I guess health is not a surprise.

I think he would accept that lobbying from such organisations should be taken seriously by all members and, indeed, that includes myself. They certainly do not support what is being proposed here, and I can understand why. I think the minster outlined the reasons fairly succinctly previously. I would just like to hear what the Hon. Mr Wade's response is to those two groups.

The Hon. S.G. WADE: The minister may want to correct me, but the 14 days to which I think the honourable member is referring is the initial period for a public health emergency declaration, after which I think the minister's declaration needs to be ratified by the Governor, but the minister's officers might correct that.

In that sense, I suppose if an initial direction, a detention order, was to be made in the first 14 days I presume it could only be made for up to 14 days. But, still, 14 days of isolation, segregation or detention is an inconvenience and I would have thought worthy of an appeal to a Magistrates Court. I should say, beyond that, if the public health officers can persuade the Governor to sign an extension, I do not think there is any limitation on that extension so, after your 14 days, you could be there for an awfully long time.

I would remind members that the minister suggested that in relation to an HIV risk, she pondered how long we would be willing to detain them before we gave them mandatory treatment, so this minister is willing to concede that we would detain them indefinitely. I think even people infected by HIV deserve the right to appeal to a court. If the risk is too high, courts are pretty conservative bodies and do not lightly disregard the advice of health officers.

The honourable member made the point in relation to three groups, particularly the health department, the police and the LGA. It does not surprise me that officers will want to minimise their accountability. That is a natural reaction for people who are planning for the worst case scenario.

In terms of managing the unexpected, it is our view, as a Liberal opposition, that managing your risks is not best done by overriding or even obliterating the rights of individuals to have their situation reviewed. The fact of the matter is that courts have continued to operate in all sorts of emergencies in English law countries over the years. They have shown great responsibility in terms of respecting the unexpected events, and I have no doubt that, particularly with clause 9 to say that the magistrate cannot remove a direction if it is necessary for the protection of public health, the courts would continue to give priority, if you like, to the overriding rights of the community.

After all, the health bureaucracy has within it the leadership of the public health sector in this state and their review would be given extremely high weight. But the fact that they are highly respected and trusted members of our community does not mean they should not be subject to review.

As I hinted earlier, an officer was suggesting that this came down to a matter of trust and confidence. I do not accept that. I believe that we as a parliament have a responsibility to respect the rights of our citizens, and that includes putting in appeal provisions. I actually hope and trust that these appeal provisions will never be used, but we have appeal provisions in all other isolation, detention and segregation provisions: why would we not have it here?

The Hon. G.E. GAGO: I will deal with a number of matters that have been raised by the Hon. Stephen Wade and the Hon. Dennis Hood. In relation to the point the Hon. Stephen Wade made about the courts' powers to suspend or revoke orders, which they have, he is right that they would only do that if it could be demonstrated that it was not adverse to public risk. However, public health officers would have to be in court arguing that case, that it was or was not adverse to public risk. We talk about the plane load of people, and you can imagine that you might have 500 or 600 appeals that a court is dealing with, and we know it would be extremely difficult for a court to deal with that number of appeals in a very timely way with respect to some of the dangers.

The example I give is that window of opportunity to deal with infectious TB. Again, I was saying that health officers would have to be in court arguing this when health officers are needed to deal with emergencies; so, it is a diversion of resources during a time of emergencies that we can ill afford. In relation to the questions the Hon. Dennis Hood asked about maximum detention, he is right: it is a maximum of 14 days unless extended by the Governor; and, yes, the Hon. Dennis Hood is correct: the LGA and police do oppose this amendment, and they are agencies that are affected by this.

The Hon. S.G. Wade: That's not true.

The Hon. G.E. GAGO: It is true. I have been advised that the LGA and the police do oppose this amendment.

The Hon. S.G. Wade: There's no detention order for 14 days; that's the duration of the declaration. You're saying I'm wrong, and I'm not.

The Hon. G.E. GAGO: You are right: it is the emergency declaration that can be extended for 14 days—I beg your pardon—unless extended by the Governor. Yes, the LGA and the police do oppose the Hon. Stephen Wade's amendment. The Hon. Stephen Wade is confused about segregation, isolation and detention. The Hon. Stephen Wade's amendment deals only with segregation and isolation. The Hon. Stephen Wade's amendment does not deal with detention. Detention is a higher order and it is dealt with earlier in the bill. I think it is under clause 77.

Although not present myself, I am aware that the honourable member indicated at briefings with public health officials that his thinking was informed by the provisions of the Queensland Public Health Act 2005, as well as by a paper prepared by the Centre for Public Health Law for the National Public Health Partnership. Even though those comments were in relation to his previously lodged amendment to this clause, this current amendment has a similar effect, in that it imposes appeal provisions on the exercise of isolation and segregation powers.

I am advised that it has been pointed out to the honourable member that his interpretation of the Queensland act is not correct; however, he seems to persist in his view. Allow me just very quickly explain to the chamber. I understand the Hon. Stephen Wade indicated that he was relying on section 361 of the Queensland Public Health Act as the basis of the need to include appeal provisions. Section 361, however, deals only with appeals against detention orders made by an emergency officer (medical) under section 349 of the act.

For the information of honourable members, detention, as I said, is a much higher form of quarantine, which is applied to those who have been exposed to a prescribed condition and whose behaviour and lack of compliance with other directions poses a clear risk to the public. Section 345 of the Queensland act contains emergency provisions similar to our provisions to isolate, segregate or directions for a person to remain in a place. It must be noted that there is no explicit appeal powers for these powers.

I believe the honourable member is conflating all these types of quarantine into one case, which is inaccurate and misleading. Segregation and isolation are much lower levels of quarantine and may potentially be applied to large groups of persons for the duration of an emergency. Detention would be contemplated only for those whose exposure status, noncompliance and behaviour pose a clear risk to the public. They would then conceivably be detained under clause 77 of the bill. It should be noted that clause 77 detention orders already have strong judicial review provisions. So, detention already has strong judicial review provisions, which are, in fact, I am advised, stronger than those that Queensland provides.

The Hon. S.G. WADE: I was wanting to respond to some of the assertions that the minister made. She asserted that the potential for whole classes of people—

The CHAIR: You may not debate it.

The Hon. S.G. WADE: No, I'm sorry; I am trying to correct the record. The minister suggested that whole classes of people could be subject to these orders, which would lead to hundreds of cases before the courts. The fact is that courts already have processes to deal with a range of similar matters together. That was a particular issue I discussed with parliamentary counsel, and they assured me that this would not lead to a flood of cases.

Secondly, health officers would not need to attend. It is common practice for government law officers to take statements from relevant experts and present them to the court as their legal representative, just as a person who is subject to the order does not need to attend. In relation to the semantic game about isolation, segregation or detention, if I am told that I need to remain at a place for a certain period, that sounds awfully like detention to me. I would submit that my amendment does enhance the bill and I would ask the committee to support it.

The committee divided on the amendment:

AYES (8)
Bressington, A. Franks, T.A. Lee, J.S.
Lensink, J.M.A. Parnell, M. Ridgway, D.W.
Vincent, K.L. Wade, S.G. (teller)
NOES (7)
Darley, J.A. Finnigan, B.V. Gago, G.E. (teller)
Gazzola, J.M. Hood, D.G.E. Hunter, I.K.
Zollo, C.
PAIRS (6)
Dawkins, J.S.L. Holloway, P.
Lucas, R.I. Brokenshire, R.L.
Stephens, T.J. Wortley, R.P.

Majority of 1 for the ayes.

Amendment thus carried; clause as amended passed.

Progress reported; committee to sit again.

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