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Legislative Council - Fifty-Second Parliament, First Session (52-1)
2011-05-19 Daily Xml
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SOUTH AUSTRALIAN PUBLIC HEALTH BILL

Final Stages

Consideration in committee of the House of Assembly's message.

The Hon. G.E. GAGO: I move:

That amendment No. 4 be insisted on, with the amendments relevant to those to which the House of Assembly has disagreed.

The government has held extensive discussions with the opposition with the aim of achieving some common ground on this issue. In the spirit of compromise and to achieve the aim of passing this significant and important piece of legislation the government is now putting forward this amendment to amendment No. 6, and I have to say that we do so with continuing concerns regarding the impact of appeal provisions against orders during a public health emergency. Obviously, I do not wish to recount all of those concerns; I think they have all well and truly been put on the record.

Suffice to say that I note the minister's comments in another place where he indicated that whoever is the minister at the time when there is a significant public health crisis may need to call an emergency session of parliament to deal with problems which could arise from these provisions. However, that will be for another day and, in any event, I am certain that these provisions, should the circumstances warrant, will be one of the matters raised during the review of the legislation which is to be undertaken within five years of its passage.

This amendment introduces four qualifications to appeal rights which will ensure that court proceedings, as far as possible, do not cut across, distract or hamper the work of public officials during an emergency, and it provides the courts with guidance regarding how to treat appeals in ways which are as expeditious as possible. In brief, those qualifications are:

1. that the making of an application does not suspend the operation of a public health order, and that the court must not suspend the operation of the order pending the outcome of proceedings;

2. that, wherever practicable, where the court is dealing with two or more applications of sufficient commonality, they be joined or heard together;

3. that the person subject to the direction is not entitled to attend the court during proceedings but is entitled to be represented by a person nominated by them; and

4. that the court must take into account the need to ensure that its proceedings do not unduly hamper the work of public officials in dealing with an emergency.

These amendments will reduce the risk that public health is compromised by appeals against orders made for isolation or segregation during a public health emergency. I would like to acknowledge that, even though this has been a point of difference between the government and other honourable members, I am very pleased that, with their cooperation and goodwill, we have been able to reach a position of agreement.

The Hon. S.G. WADE: I indicate that the opposition will be supporting this amendment, as we have undertaken to the government. Like the minister I would like to make some reflections on this process. The minister referred to the spirit of compromise as though the government had displayed some virtue. The reality is that I have been amazed at the intransigence of the government on this matter. We have had briefing after briefing, email after email, phone call after phone call and, if there was a spirit of compromise being evidenced, it was evidenced at the 11th hour and not through the process.

In terms of the comments of the Minister for Health in the other place about the possible need for an emergency session of parliament, it is just not credible. The reality is that in an emergency context the steps that would be needed to resume a session of parliament would not be practicable. The reality is that the government knows that these provisions are workable or at least, shall we say, worth trying. I admit that we are not convinced that these are perfect, but then what bill on the statute books is? But we do believe that it was important to maintain the balance between individual rights and the responsibility to protect the community in times of emergency.

If, to a certain extent, the bill does prove to be unworkable during an emergency, I would remind the house that the government always has available to it the Emergency Management Act, which does not have appeal provisions. We are used to the government putting things on the record for the sake of media and future self-protection, but I thought the Minister for Health's comments in the other place were quite disingenuous.

I would express, on behalf of the opposition, our pleasure that in this health bill we have been able to maintain a balance of interests. The parliament is a place where a range of perspectives come in, they are tossed around and we try to find a balance. There were certainly very serious issues here with balancing the interests of the community to effectively deal with health emergencies while at the same time minimising the impact on personal freedoms.

Freedoms are also related to health. The contributions of the Hon. Ann Bressington in relation to issues relating to medical self-determination are not unrelated to health. So, for a portfolio which is extremely respectful of personal rights in areas such as mental health and control of notifiable diseases, what was apparent to me through this debate was that the public health wing of that profession needs to do some good hard thinking about how its responsibilities can be implemented in the context of a health emergency.

I notice that there is a Centre for Public Health Law at Flinders University, so it is good to see that the sub-profession or profession—I am not sure how it is described—is giving thought to these matters, but there did not seem to be any conviction of the need to balance rights, which we see all the time in things like mental health and other areas of health, so I would encourage the health profession to do some more work there. I also think it highlighted problems with the process.

We found that we were continually engaging the Minister for Health's health officials, and the officials who were responsible for other interests—for example, the Attorney-General's department—were not present. I think, in terms of the way the government manages legislation, where conflicts of interest or, if you like, a balancing of interests become necessary, I would suggest that the government might think of a way to better bring in the range of expertise that government has available to us.

In conclusion, I would like to thank particularly the crossbench MLCs. The reality is that we would not have achieved one jot nor tittle of improvement on this bill unless a significant bloc of MLCs in this chamber—

An honourable member: Jot nor tittle—can you spell it?

The Hon. S.G. WADE: Yes, I can, but I shan't. We would not have achieved any changes to this legislation without MLCs who were willing to support not progressing the bill. I appreciate that many of them were reserving their position. They were not necessarily saying that a balancing of interests was possible, but they gave the opposition the opportunity to explore what was possible with the government, and that was not without some workload. The consultations that have gone on in relation to this matter have been extensive. They have been long and complex, and I greatly appreciated the engagement of the crossbench MLCs who provided that support.

It is just so easy for governments to say, 'It can't be done.' If they keep saying it often enough, they think that the MLCs will go away. Well, I think it is extremely important, and I would say this to our opposition team as well. We did it last night with the CCRC bill. We do not think it is perfect, but we think it is an idea worth keeping alive, so we are committed to that. Likewise, MLCs who supported us on these amendments said, 'Okay. We don't know if these amendments are workable, but we think these are values worth looking at and worth pursuing.'

As I said in my earlier comments, these amendments may not be perfect, but what they do is put on the record that in South Australia the South Australian parliament is not willing to put in isolation, segregation and detention powers in legislation without review provisions. We have not done it in any other legislation; why would we do it here? We have said that we are committed to maintaining a balance. That balance might need to be tweaked. The government may need to use the Emergency Management Act from time to time because of unforeseen circumstances, but we encourage the government, and the people who serve us so well in the public health area, to continue to think about these issues and how they are implemented within the South Australian community.

Motion carried.

The Hon. G.E. GAGO: I move:

That the Legislative Council does not insist on its amendment No. 6.

Amendment No. 6 would have inserted the appeal rights now included in clause 90 into the Emergency Management Act 2004 should a declared public health emergency proceed so far out of control that the government needs to activate broader powers under the Emergency Management Act 2004. The government's position all along has been that the circumstances which would give rise to this situation would be so dire to the health and functioning of the community that there must be no impediment to responding to the real and critical threat that such an emergency would pose.

I understand that, after discussions, the opposition is willing not to press this point and I thank them for their careful consideration of not only the government's views but also the views of SAPOL and the Local Government Association on this very serious matter. I sincerely hope that we are never in a public health crisis where we have to call up the Emergency Management Act powers but, should we be in that situation, the government of the day must be able to muster its entire powers and resources and apply them completely to the task of protecting us all.

The Hon. S.G. WADE: The minister is correct to the extent that she says the opposition will be supporting the motion not to insist on amendment No. 6, but I think in response to the comments of the minister I should clarify the opposition's position. I would not want the minister's comments in terms of restating the SAPOL and health position in relation to the Emergency Management Act to lead people to believe that we believe that a review power is not possible in the Emergency Management Act.

Just as we have considered the opportunities to balance interests in terms of emergency management and personal freedoms in the context of the health bill, when the Emergency Management Act is next opened, I would indicate to the government that I would like to explore review provisions there as well. Just as the government told us that it cannot be done in relation to public health, I do not accept the government's assertions it cannot be done in relation to emergency management. I appreciate that these things are difficult, but we believe that perseverance and continuous improvement to such provisions can ensure that all the rights of South Australians are balanced, both health and other rights.

Motion carried.

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