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Legislative Council - Fifty-Fourth Parliament, Second Session (54-2)
2021-02-02 Daily Xml
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COVID-19 Emergency Response (Expiry) Amendment Bill

Introduction and First Reading

Received from the House of Assembly and read a first time.

Second Reading

The Hon. R.I. LUCAS (Treasurer) (17:23): I move:

That this bill be now read a second time.

I seek leave to have the second reading explanation and the detailed explanation of clauses inserted in Hansard without my reading them.

Leave granted.

Mr President, I am pleased to introduce the COVID-19 Emergency Response (Expiry) Amendment Bill 2021.

Measures to reduce the spread of COVID-19 are fundamental to our ongoing response and keeping the community safe.

The Declaration of Major Emergency, in place since 22 March 2020 last year, provides the authorising context for the important social distancing and public health measures issued by the State Coordinator through Directions.

I must thank all South Australians for their ongoing co-operation with these Directions which have helped keep South Australia safe and strong. Mr President, as the Premier and the Coordinator have already publicly stated, work is now being undertaken on the next stage of our legislative response, as we transition out of a major emergency into more of a management or recovery phase. A Bill will be brought to the Parliament shortly.

The COVID Act amends other South Australian legislation to temporarily adjust some legislative requirements that are difficult to satisfy during a pandemic.

The Act came into effect in April 2020 last year and will expire on 6 February.

This Bill proposes to extend the operation of the Act to 28 days after the day on which all relevant declarations relating to the outbreak of COVID-19 within South Australia have ceased or 31 May 2021, whichever is the earlier. This 28 day transition period will allow Ministers and agencies to make necessary arrangements.

Extending the COVID Act is crucial to continuing our business while maintaining physical distancing. It contains provisions that are necessary for the ongoing management of the risk of COVID-19 in South Australia. Those provisions that are no longer necessary for the purposes of the COVID-19 pandemic have already been expired by the Attorney under section 6(1) of the COVID Act.

Mr President, I will now deal with each of the provisions of the Act that are to be extended:

Sections 8 and 9 that deal with residential tenancies, residential parks and rooming house agreements will be extended. These provisions, inter alia, provide a temporary moratorium on eviction for non-payment of rent applied across tenancies impacted by severe rental distress due to the COVID-19 pandemic.

The following other provisions will also be extended:

Section 10 which contains protections for residents of supported residential facilities;

Section 10A which allows certain community visitors to visit by audio-visual or other electronic means;

Section 14 which allows the Governor, by regulation, to extend any time limit or term of appointment by up to 6 months;

Section 16 which allows the Governor, by regulation, to suspend or modify requirements relating to the preparation, signing, witnessing and other treatment of documents;

Section 17 which allows meetings to take place by audio-visual or other means;

Section 18, 19 and 21 which provide for service of documents, regulations and transitional provisions;

Section 22 which deals with Crown immunity from civil or criminal liability; and

Schedule 1 which contains special provisions relating to the detention of certain protected persons during the COVID-19 pandemic.

Schedule 2 of the COVID Act, which modifies the operation of a number of Acts, will also be extended.

The Aboriginal Lands Parliamentary Standing Committee Act 2003 and the Parliamentary Committees Act 1991 is amended to allow Standing Committees to meet via audio-visual or audio means.

The Bail Act 1985 is amended to reverse the presumption of bail for certain offences related to the COVID-19 pandemic.

The Criminal Law Consolidation Act 1935 is amended to expand the offences against prescribed emergency workers to include people working in pharmacies and providing pharmacy services.

The Development Act 1993 and the Planning, Development and Infrastructure Act 2016 are amended by reducing to 15 business days the time for councils to respond to applications for Crown development and in the case of the Development Act 1993, Crown development and public infrastructure. The Act also amends the Development Act to increase the threshold from $4 million to $10 million for referral of Crown development and public infrastructure to public consultation.

The Emergency Management Act 2004 is amended to clarify the scope of directions given under section 25 and provides that expiations can be issued for failing to comply with these directions and compliance with a direction is required despite any obligation to maintain secrecy or other restriction on disclosure.

The Emergency Management Act 2004 is also amended to allow for directions in relation to the transmission or distribution of electricity when an electricity supply emergency has been declared. It also clarifies the directions that can be given to market participants.

The Environment Protection Act 1993 is amended to allow container deposit refunds to be refunded electronically.

The Health Practitioner Regulation National Law (South Australia) Act 2010 is amended to allow pharmacists to attend by the internet or other electronic communication in certain circumstances.

The Governor is empowered to make regulations to modify the National Electricity Law to protect the reliability and security of the South Australian power system.

The Public Works Committee processes under the Parliamentary Committees Act 1991 are modified.

The South Australian Public Health Act 2011 is amended to clarify how an order made by the Chief Public Health Officer is to be given effect, to provide how orders requiring detention are made and enforced and to allow the Chief Public Health Officer to authorise the disclosure of personal information.

By extending the operation of the COVID Act, the regulations that have been made under it will also be extended.

Mr President, I also wish to take this opportunity to address an issue that has concerned many members of the public, and indeed Members of this House, which is how government has been treating personal information collated for contact tracing purposes through the use of QR codes.

Under Emergency Management (Public Activities No 18) (COVID-19) Direction 2020, and previous versions of this Direction, an approved contact tracing system, namely the COVID-SAfe Check-In, is required to capture relevant contact details of persons who enter particular places.

Information provided under a COVID-SAfe Check-In is protected by the confidentiality provisions of section 31A of the Emergency Management Act 2004 which provide that medical information or information the disclosure of which would involve the disclosure of information relating to the personal affairs of another must not intentionally be disclosed unless the disclosure is made:

(a) in the course of the administration or enforcement of this Act, or

(b) with the consent of the person; or

(c) the disclosure is required by a court or tribunal constituted by law.

Contravention of this provision is an offence with a maximum penalty of $5,000.

The Information Privacy Principles also govern the use of private information provided in a COVID-SAfe Check-In.

Aside from the legislative protections, the Government has made public assurances that the data provided in a COVID-SAfe Check-In will only be used for contact tracing purposes. This public undertaking is far narrower than the provisions of s 31A.

I am satisfied that Government's assurance, together with section 31A of the Emergency Management Act 2004 and the Information Privacy Principles adequately regulates the collection and use of personal information provided under a COVID-SAfe Check-In.

Further, the deletion of QR-related data is and continues to be deleted on a rolling schedule. All personal information collated from 31.3 million check-ins from between 30 November and 4 January has been deleted, with data held for 28.2 million check-ins from 3 January to midnight 2 February for contact tracing purposes.

Mr President, our emergency response to date has kept South Australia safe and strong. I commend the Bill to Members and I seek leave to insert a copy of the Explanation of Clauses.

Explanation of Clauses

Part 1—Preliminary

1—Short title

2—Amendment provisions

These clauses are formal.

Part 2—Amendment of COVID-19 Emergency Response Act 2020

3—Amendment of section 6—Expiry of Act

This clause amends section 6 of the principal Act to extend the date on which the Act expires to 31 May 2021.

Standing Orders Suspension

The Hon. R.I. LUCAS (Treasurer) (17:25): I move:

That standing orders and sessional orders be and remain so far suspended as to enable the bill to be taken through all stages without delay.

Motion carried.

Second Reading

The Hon. K.J. MAHER (Leader of the Opposition) (17:26): I rise to support the second reading of this bill and indicate that we will support the passage of this bill. The bill is a very simple bill, it replaces the date the bill expires—I think this Saturday—with 31 May to extend the emergency operation provisions for another couple of months. There are a couple of things I might ask now so that when we get to the committee stage we can speedily do that. Helpfully, the Attorney-General's office provided a table of all the various provisions of the bill and went through those that have already expired, for example, the commercial leases provisions, which I noticed in the Gazette has expired. That was useful.

One question we would ask the Attorney-General's office is whether that summary could be placed on a website and kept up to date so that, rather than trawling through each Thursday's Government Gazette to see which had expired and when, it would be put together in one place. It would be appreciated if the Treasurer could give the undertaking, perhaps in the committee stage, that such a summary will be kept up to date on a website from the government somewhere.

The other thing that would be useful and should only take a few minutes would be for the Treasurer to outline where we are in the process of replacing the emergency management regime we currently have with something new. In recent days, the State Coordinator, the police commissioner, has made comments about the current regime not being fit for purpose: it was not intended for the situation in which we now find ourselves, where we have had the COVID pandemic for more than a year.

We understand that consideration is being given to a new regime, in effect, that is more fit for purpose. It would be good for the Treasurer to update the chamber on where we are with that. Have there been cabinet decisions that a new regime will be put in place and when can we expect it? I know that, although this legislation is simple, it was only given to the opposition (and I assume the crossbenchers) on Thursday of last week for us to consider today.

Although this is more simple than others, it is difficult, given that we have known since we passed this last year in either late November or early December that this is the date it would expire. To wait until the Thursday before a sitting week to provide legislation is unsatisfactory. The Treasurer might indicate, if they are looking at a new regime to replace it, how long before 31 May we might get to see it so that we can properly consider it.

The Hon. M.C. PARNELL (17:29): As much as we would like to think that COVID is behind us, clearly it is not yet. Whilst the number of cases is pleasingly low in almost every jurisdiction, and whilst in South Australia we are doing very well, I think most people appreciate that the emergency response measures still have some little work to do, so I will support this bill.

I want to quickly mention something that the minister in another place spent about a quarter of her speech addressing, and that is public disquiet over the security of the QR code check-in system. I have discussed this with some members and I had thought that maybe some appropriate amendments might be incorporated into this bill, but we know that time is of the essence with this bill and we need to get it to the Governor and have it in place by Friday. Earlier today, I gave notice of my intention to introduce a bill tomorrow to amend the Emergency Management Act. That bill—I will not address it now, I will address it tomorrow—basically enshrines the assurances and the undertakings that the minister has already given.

As people have said in the past in relation to this bill—sorry, not just this bill but in relation to the legal and regulatory response to COVID—it is powered 90 per cent on trust; the community is trusting that the medical authorities know what they are doing and they are trusting that the government's responses are appropriate and proportionate. But that trust can be given a boost by putting into legislation some of the protections that the government has assured us are in fact already in place.

What I am talking about is the fact that the COVID app check-in data can only be used for the purpose of contact tracing for COVID. I know the minister in another place said, 'That's already covered,' but there are enough lawyers who have said, 'It's not quite covered, minister,' so we do need to do a bit more. Similarly, I accept what the minister says, that the data is being destroyed when it is no longer needed for contact tracing. I accept fully that that is what they are doing, yet I think the public will have even more confidence in the system if the legislation says it will be destroyed and creates an offence for not destroying it. That is a discussion that we will have after I have introduced my bill tomorrow.

I am pleased that COVID is coming towards a natural end, certainly in Australia and hopefully around the world. I know my elderly father is looking forward to getting his jab. He is in one of the priority groups interstate, so not anything I need to be lobbying the health minister here about—not that I would anyway, that would be very inappropriate. Certainly, the 80-pluses will be early on in getting the vaccine and I think that is a good thing. I look forward to 31 May when hopefully this bill will not need to be extended for any further period of time.

The Hon. C. BONAROS (17:32): I rise on behalf of SA-Best to indicate our support for the second reading of this bill. As we know, and as other members have mentioned, the COVID-19 Emergency Response Act has been in force since May of last year. We are being asked to extend the operation of that for the third time, thereby extending our emergency response to 31 May this year. In the absence of this bill, of course, those provisions would expire later this week.

I think it is important to note that the two most contentious aspects of the original legislation, namely the removal of children and the power to make commercial leasing regulations, have already expired and are not being renewed under this bill. The government has indicated that this is likely to be the last extension as they look forward to introducing amended emergency management legislation sooner rather than later. By supporting this extension it hopefully gives the government the room it needs to introduce careful and considered emergency amendments in the wake of the pandemic and, I would hope, with the advice of the experts that have kept us safe to date.

As we know, under a state of emergency the normal parliamentary scrutiny on restrictions is more or less circumvented. Under a state of emergency extraordinary powers to issue directions are conferred on an unelected public official. They can be imposed very quickly and without notice. To date this has been done in a very considered and commendable way. Our police commissioner, as State Coordinator, has been guided by health experts when making the decision to impose various restrictions on our everyday lives.

Over the past year, many South Australians have been subjected to stay-at-home orders, cross-border travel restrictions and quarantine requirements, with exemptions for essential workers. They have impacted the day-to-day life of each and every one of us, with the common goal of stopping the spread of COVID-19 in our jurisdiction.

By and large I think we have collectively done a fantastic job in complying with the orders. There have been times where they have been challenging but, again, by and large we have generally been very compliant. Close to one million tests have been carried out, with many South Australians lining up for hours, sometimes almost for a day, to be tested, so on behalf of SA-Best I would like to congratulate the South Australian public for the responsible and committed way they have responded to this emergency.

We need to give credit where it is due. The fact that we have listened to the experts, listened to the science, has served us very well, especially when you consider the international death toll. We are in a good place but, as the Hon. Mark Parnell highlighted, it is not over yet, so there is no room to be complacent. We only have to look as far as Western Australia to see how things can turn around in an instant.

Looking forward, though, the question for parliament will no doubt be how long the emergency can last. Is this still an emergency or is it just the new normal? If the latter is true, then how do we legislate for this long term?

I look forward to the further analysis and scientific evaluation of some of the provisions implemented as part of our COVID-19 response. Some of these have had very positive effects on disease control and health more generally; for example, telepharmacy, telemedicine and electronic scripts have protected the more vulnerable in our community from a range of infections, including this pandemic. There are also many other benefits we have seen.

I want to remind honourable members, and the government in particular, that last year the Social Development Committee, chaired by the Hon. Dennis Hood, conducted its review into the Public Health Act. It is fair to say that when we undertook that review we were not in a position to assess the appropriateness or otherwise of those provisions in the act that came about as a result of COVID-19, even though that was one of the things we were supposed to do.

That said, the committee did recommend that at the end of the expiration of the declaration of major emergency status the committee would undertake that review. I am sure this will be on members' agenda at the next committee meeting, but I flag it now because I think it is necessary to do so for the government's benefit, as well as other members' benefit, given that we are likely to see a new bill dealing with emergency management. One would hope that the committee has had the opportunity to undertake their legislated review between now and when a new bill is drafted or finalised.

The only other thing I want to add is that if there is one aspect of this that I have not been entirely happy with it is the lack of engagement we have had with our Mental Health Commissioners. I want to place this on the record because members will recall that when Mr Kelly appeared before the committee—and this was widely publicised in the media—he was highly critical of the legislation itself and the lack of consultation, input and direct dialogue with the commissioners in the drafting of the emergency measures and in light of the concerns they raised regarding the mental health impacts of COVID-19, the worst of which we have not yet seen.

I make that point because I think it is really important. If we are going to look at drafting the new legislation we need to ensure that all the experts in the know are consulted. We have been told that the mental health impacts of this pandemic are at least another three to five years away. We have not seen that yet, so I am urging the government to ensure that when these discussions are taking place, they speak to the Mental Health Commissioners and get their input in terms of the mental health impacts that will have a very long-lasting effect on the South Australian community.

With those words, and for the reasons I have already outlined, I indicate our support for the second reading of the bill.

The Hon. T.A. FRANKS (17:38): I rise very briefly to join my colleague the Hon. Mark Parnell in expressing support for the bill before us. I also take this opportunity to note that, while this is a very simple bill and extends what has become 'business as usual' in a year that was not at all 'business as usual', we are looking forward to a more productive debate on a more complex bill in terms of how we operate in the ongoing world dictated to us by the pandemic.

I look forward as well to the interim report of the COVID-19 oversight committee that is due to come to this place to inform the next debate. I do, however, want to put on the record some concerns, echoing the Hon. Connie Bonaros's concerns, that in our haste and in our working together cohesively to manage this crisis many things are going through to the keeper that should not be, mental health being one of them. The words of the Mental Health Commissioner to that particular committee were certainly, I think, a clarion call for more transparency and a parliament that is given the opportunity to have full information.

That particular committee does not have full information coming through from the Transition Committee and from other bodies. I am incredibly disappointed. It has been put on the public record that, for example, the chief executive of Health said that he had provided a raft of information—indeed, I think the quote was 'a package of information'—on the medi-hotels which was not forthcoming to the committee. He then attempted to say that he had meant a completely other document about the football players' families who sought an exemption.

That document, I think, was some one or two or possibly three pages long. I cannot see how he would have confused that with a raft—a package—of information on the medi-hotels. That beggared belief, and our patience as parliamentarians is wearing somewhat thin. We have been told to just let everything go through to the keeper and that it is all under control.

It is to the credit of this government that they have taken the health advice, that our State Coordinator has effectively managed this pandemic, but we cannot ignore, for example, the utter communication debacle that was the Christmas period of the border closures—people being put in a medi-hotel for a few hours with incorrect information.

My office takes many constituent inquiries. Some constituents were quite rightfully told, under various COVID directions, that they needed to get tested, whether they were at the Sturt campus at Flinders University in that period of time, and then refused COVID testing when they actually got there because SA Health was not on the same page or indeed local health networks were on different pages—CALHN, SALHN and NALHN are all actually reading from different hymn books. That lack of communication and clarity and transparency does go a long way to really ringing some significant warning bells that this is not operating as smoothly as it should be by now and that more transparency, not less, is required into the future.

The Hon. R.I. LUCAS (Treasurer) (17:45): On behalf of the government, I thank honourable members for their contribution on the second reading and also for their consideration in most unusually agreeing to bring on discussion of the bill at such short notice. As members have indicated, whilst it is relatively simple, there are nevertheless ongoing complex issues that some members have addressed, and I am sure there are plenty of other complex issues which the oversight committees and others will continue to raise.

In response to the specific issues that the Hon. Mr Maher raised, whilst I have not had a discussion with the Premier or the Attorney-General, I would be pretty confident in saying we would be comfortable in agreeing to meet his request in relation to some ongoing record of progress, if that is the best way of putting it, in terms of what provisions still apply and what do not apply in relation to the legislation. We will find what the appropriate site for that is, and I am sure we can meet that particular request.

In relation to the second issue, I can indicate that cabinet certainly has not resolved a position in relation to what the ongoing shape and structure of the legislation might be. It is a complex issue, and I would imagine at some stage this legislation, if it passes, buys us some time through to the end of May so that, hopefully well prior to that, the government can resolve a position. If that requires the agreement of the parliament, the parliament can debate that particular issue as well. That is an ongoing issue, and nothing has been resolved by the cabinet or the government at this stage.

What I would say in relation to this is that, in my view, if there is going to be an ongoing need for extraordinary powers for somebody, even with the rollout of the vaccination, there is going to be an ongoing need, at very short notice, to be able to take decisions in relation to, potentially, border controls, density requirements, restrictions on crowd numbers and those sorts of issues that sadly we have become familiar with in the last 12 months.

I hear, and many within my friendship and acquaintance group say to me, about unelected officials, the police commissioner, the Chief Public Health Officer or something, but ultimately, in my view—and this is not a concluded position of the government because I have not seen what the Attorney-General's Department is going to resolve or recommend—there is the assessment that, because of COVID and the outbreaks that we see, even with vaccination, someone or some body somehow has to make very quick decisions about these sorts of things.

We have heard the evidence that the jury is still out in relation to the transmissibility, even with vaccinations, of the various strains of COVID-19 that are sadly emerging around the world—even more problematic strains from firstly the UK, then South Africa and now Brazil and all parts of the world. If all of a sudden there is a significant outbreak, someone or some process needs to be there so that there is a quick response.

I guess the Western Australian experience has been that they have gone hard and gone early in relation to it. The South Australian experience—albeit we were criticised at the time—was to go hard and go early, and some of the other jurisdictions have then sought to go hard and go early in terms of trying to crack down on COVID before it gets out of control in a particular area. If there is one thing that we have learned, it is that there needs to be the capacity to make immediate decisions, very significant decisions, that impact on civil liberties and the normal things we have come to expect. So if it is not going to be an unelected official then I assume that people have argued that it means it has to be an elected official.

The Hon. C. Bonaros interjecting:

The Hon. R.I. LUCAS: Well, it might be, but I am talking about the views that I get around dinner tables and barbecue sets and the like, and in particular from the publicans, the hoteliers and the others who have very strong views about unelected officials. If it is not going to be an unelected official then it is going to be an elected official. That means it is either the Premier or a minister, individually (and there are some decisions that are taken by individual ministers), or it is a cabinet; or it means that every time you have to come back to parliament and have it agree on legislation.

All I am saying—and tonight is not the night to resolve this issue—in answer to the Hon. Mr Maher's question, is that, no, the cabinet has not resolved what the ongoing shape and structure of it is. I know some members in this chamber have engaged in sensible discussion and debate with me and with other government members. I am certainly open to having those discussions, because I will be participating in the government discussion when it arrives in the cabinet.

I am interested in various people's ideas as to what the various options might be, but I do it within the context of: if you agree with the premise that somebody or something is going to have to have the capacity to enact extraordinary powers very quickly, then we have to work out what that is—if it is going to look different from what we have at the moment. I know there is a whole variety of different views about what might be the case.

I take the comments from the Hon. Ms Bonaros and the Hon. Ms Franks about some of the very important complicated issues and lessons we are learning in relation to mental health. There are many other issues I am sure both members could have raised, and other members would have raised, in the context of lessons that we are learning, have learnt and, as this continues, will learn in relation to how we manage COVID-19.

I wrap up my contribution to the second reading by agreeing with a number of the members and saying that whatever lessons we are learning, have learnt and will learn, I am forever thankful—I thank God—that I and we were born in South Australia, born in Australia, and that the response we have had broadly within Australia, and particularly in South Australia, has meant that we are better placed than almost anywhere else in the world in terms of managing the terrible implications we have seen in many other parts of the world in relation to the effects of COVID-19. With that, I thank the honourable members for their second reading and look forward to the committee stage of the debate.

Bill read a second time.

Committee Stage

Bill taken through committee without amendment.

Third Reading

The Hon. R.I. LUCAS (Treasurer) (17:52): I move:

That this bill be now read a third time.

Bill read a third time and passed.

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