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Legislative Council - Fifty-Fifth Parliament, First Session (55-1)
2022-05-17 Daily Xml
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Bills

South Australian Public Health (COVID-19) Amendment Bill

Second Reading

Adjourned debate on second reading.

(Continued from 5 May 2022).

The Hon. R.A. SIMMS (16:18): I rise to speak on the South Australian Public Health (COVID-19) Amendment Bill on behalf of the Greens. The Greens are supportive of this legislation, but with some very important caveats. My colleague the Hon. Tammy Franks MLC has certainly prosecuted this case for the Greens in the previous parliament, that is, advocated in the long term for these provisions to move out of the emergency management declaration into legislation so that the parliament can have appropriate oversight.

We recognise that in a democracy like South Australia it is not appropriate to have a regime in place where the parliament is not having a say and where we have unelected officials making significant decisions about our health, our wellbeing and, of course, our civil liberties.

One of the things I think we all recognise in this place is the leadership of the public health experts who have informed our response to the pandemic over the last two years. One of the things that I think set South Australia apart from many other places around the world was the willingness of the previous government to follow the health advice, and I want to recognise the leadership of the health minister at that time, who is here in this chamber, the Hon. Stephen Wade, for his leadership in dealing with what I can imagine would have been one of the most challenging periods that any government would face, and that is a global pandemic. I do want to acknowledge that.

Now that we are moving into another phase of this pandemic, the time has come for the parliament to play a much more active role, and so from the Greens' perspective we welcome these provisions being now codified in legislation. As I say, we also want to ensure that there are safeguards in place.

One of the key concerns for us in the Greens has been putting in place a parliamentary committee. We have, I am pleased to say, been negotiating and discussing the prospect of that with the government and with the crossbench. What the committee that we are proposing will achieve is ensure that there is parliamentary oversight. That committee will have the power to make recommendations for directions to be disallowed, and I think that is going to be an important step in terms of how we manage this pandemic going forward. It also means that, from the perspective of the Greens, we will not be pursuing some of the other amendments that I have flagged previously, because we will have this important safeguard in place.

The other thing for us that is vitally important is around ensuring that there is the opportunity for appeal. One of the issues that we will be talking about a bit more during the committee stage is amendments that look at ensuring that there is a right of appeal for people who are being detained, that is, people who are being held under the Public Health Act in hotel quarantine, for instance, that they have the opportunity to make an appeal and to make the case for their personal circumstances.

With those important caveats—the right for this parliament to disallow ministerial directions, the minister giving updates on those directions to this parliament and the oversight of a parliamentary committee that is not dominated by the government—on the basis of those important safeguards, or with those important safeguards in place, the Greens will be supporting this bill.

The Hon. J.M.A. LENSINK (16:22): I rise to speak on the South Australian Public Health (COVID-19) Amendment Bill 2022 and indicate that I am the lead speaker for the opposition, although I would like to acknowledge in this, particularly, the sage advice of the Hon. Stephen Wade. I also place on record our thanks to him for his role during the pandemic and also acknowledge former Premier Steven Marshall, Chief Public Health Officer Professor Nicola Spurrier and our State Coordinator, Grant Stevens.

The government is proposing to move out of the major emergency and manage the COVID-19 pandemic under the South Australian Public Health Act 2011, and the opposition supports that goal. We are providing bipartisan support for the government's policy and the bill. We are, however, concerned that the bill as drafted fails to deliver fully on this commitment. The bill significantly replicates the emergency management provisions and blocks standard elements of the Public Health Act response

We have proposed amendments and are supportive of other amendments to honour the bipartisan goal to leave this major emergency in word and reality. Our health spokesperson, the new member for Schubert, has described the drafting of the bill as a 'cut and paste', so we are seeking to make sure that this is a much better model.

We believe that our amendments to the bill strike a fair balance and will meet the expectations of the community as COVID-19 impacts ease for South Australians. With such an approach to this bill, we owe it to South Australians to review changes with a critical eye, and this should not be a rushed, tick and flick exercise.

By way of background, on 22 March 2020 the State Coordinator, Commissioner Grant Stevens, declared a major emergency under section 23(1) of the Emergency Management Act 2004 in respect of the outbreak of the human disease named COVID-19 within South Australia. Since that time, the major emergency declaration has been extended 28 times by the Governor. The declaration was most recently extended on 30 April 2022 for a further 28 days, and the major emergency is due to lapse on 28 May 2022. The government would like to end the major emergency declaration under the Emergency Management Act by 30 June. There are three sitting weeks, including this one, before 30 June.

The government is putting forward this bill in anticipation of the expiration of the declaration. In particular, the bill seeks to maintain directions made under the Emergency Management Act. There are currently 18 directions in place in addition to three declarations relating to the major emergency itself. Without the bill, upon cessation of the declaration all the current directions would lapse. Some elements of the directions will still be needed as we transition out of the major emergency, and the bill primarily maintains the directions in force at the end of the major emergency.

It is still not clear what the government intends will be in place at that time. At a briefing the government held for us yesterday, officers advised the opposition of the intention to issue a new consolidated direction before the major emergency lapses. The issue is that the parliament is being asked to pass a bill which maintains a direction it has not even seen, which is not good lawmaking. The opposition has sought a copy of the consolidated direction as soon as possible, even a draft, and at the time of speaking we have not received that, as far as I am aware.

As drafted, the bill allows for the COVID-19 directions under the Public Health Act to be terminated within six months from an unspecified commencement date. To provide appropriate oversight of the pandemic response, we consider that the six-month time frame for expiry is too long. The opposition is attracted to amendments that have been filed by the crossbench that specify an expiry time frame of four months, which would avoid a costly early resumption of parliament during the winter recess, allowing parliamentary consideration of any extension during the first two weeks of September.

The government proposes that the expiry of the directions be affected by a gazettal by the minister. Consistent with the revised governance arrangements to make new directions, the opposition proposes that the bill be amended to provide for cabinet to recommend to the Governor when directions should expire. It is important that South Australia maintains agility in its pandemic response. This pandemic is not yet over and it is not predictable. The government and the community of South Australia have constantly needed to pivot in responding to COVID-19 and we are highly likely to need to do so again.

South Australia continues to record thousands of positive cases every day and our active cases are over 26,000. Unfortunately, 403 people have died of COVID-19 in South Australia, 172 of those people since 19 March. Significantly, on the very day the government provided the opposition with this bill, the Chief Public Health Officer advised the government that two new variants of COVID-19 had been identified in South Australia. We are also entering our first flu season for three years. We maintain that the government's bill limits the state's agility in the following ways:

the government intends to let the declaration of a major emergency lapse with no declaration of a public health incident or public health emergency to replace it;

the bill maintains current directions for up to six months;

the government cannot modify any current directions;

the government can only issue new directions in relation to isolation of positive cases and close contacts;

any new or reimposed requirements would require a declaration of either an emergency under the Public Health Act or an emergency under the Emergency Management Act; and

the government has the capacity to come back to the parliament to seek to extend the time frame for expiry of directions beyond six months.

The Minister for Health has advised that the bill is supported by the State Coordinator, Commissioner Grant Stevens, and the Chief Public Health Officer, Professor Nicola Spurrier.

If passed, the bill would see the State Coordinator's role being replaced by the Chief Executive of the Department for Health and Wellbeing. It is understood that the government still envisages that the Emergency Management Council subcommittee will provide advice on the COVID response, in particular, the making of new directions in relation to requirements for COVID-positive and close contacts, which is section 90B(1).

The Chief Public Health Officer, the Chief Executive of the Department for Health and Wellbeing and the police commissioner would all have input to the process. This opposition is determined, indeed committed to, protect the rights of our South Australian citizens, from the right to be protected from disease to the right to free movement and association.

The existing Public Health Act embodies a set of eight overarching principles and specific principles that relate to public health responses. It is noteworthy that the Emergency Management Act is not subject to such principles. The government bill proposes to exclude provisions of the Public Health Act which would otherwise protect citizens' rights and remove capacity for appeals.

This opposition seeks to amend the bill to protect those rights and appeals. If the government considers that the public situation has eased to the point that we can leave the major emergency and move from the Emergency Management Act to the Public Health Act, then it must be the case that the normal provisions of public health should apply.

If the public health situation deteriorates, the Emergency Management Act can be activated through a fresh declaration. The opposition has also given detailed consideration to the enforcement of provisions which carry both imprisonment penalties and expiation fines. We support moves out of the major emergency declaration, but propose amendments to the South Australian Public Health (COVID-19) Amendment Bill 2022 to remove imprisonment and enormous fines from the list of penalties.

Heavy punitive measures associated with an emergency declaration should not be entrenched as we move through the pandemic. Decreases in penalties to remove imprisonment and reduce maximum sanctions, by approximately a third, would see the state become more aligned with rules in other jurisdictions. The maximum fine under our amendments would be reduced by about one-third, to $50,000 for a body corporate and $15,000 for a natural person.

Our amendments to the bill strike a fair balance and will meet the expectations of the community as we exit the major emergency. The government will continue to have the capacity to return to a full major emergency declaration if needed, but continuing with these penalties beyond a major emergency is a bridge too far.

We believe that the penalties must be both reasonable and necessary and that they are applied equitably. We maintain that we are committed to a bipartisan or, indeed, multi-partisan response to the pandemic and look forward to further consideration in committee and note that the recent comments from the government in conjunction with members of the crossbench indicate that, without having been pushed to a new position, the government's bill would indeed have had many flaws which we hope will be rectified through the committee stage.

The Hon. C. BONAROS (16:32): I rise also on behalf of SA-Best to speak on the South Australian Public Health (COVID-19) Amendment Bill 2022 and echo some of the sentiments that have already been expressed by my colleagues in relation to this bill.

As we move out of state of emergency, there is work to be done to ensure that our laws are fit for purpose should we see another COVID-19 or COVID-like pandemic. In their current states, I think it is fair to say neither the Emergency Management Act or the Public Health Act are properly equipped to do that job as they stand.

I am fully supportive of the Law Society's view that our Emergency Management Act needs to be looked at very carefully by this parliament. It was not designed to deal with COVID-like situations but, as we all know, at the time that is the only vehicle we had available to us that would allow a State Coordinator to step in and deal with the unexpected and quick nature with which COVID hit our communities.

In reality, we know that that legislation was really designed for things like floods, like fires, certainly not global pandemics like COVID-19. I think there is broad consensus that, as we transition now away from the state of emergency to a living with COVID situation, as it has been coined, the Public Health Act is an appropriate vehicle to use for these further changes or at least short-term measures.

But that comes with some very important qualifications. Certainly, the bill as it was first introduced into this place, was not one that we on this side of the chamber would contemplate without some serious amendments. We spoke to our stakeholders, the same stakeholders that other members I am sure spoke to. We spoke certainly to the Law Society and Dr Sarah Moulds as well actually and sought advice about what it is that we were concerned about.

We drafted amendments to deal with those concerns. Broadly, those concerns revolved around the extraordinary powers that this bill gives the executive when it comes to close contacts and COVID-positive cases. It is fair to say that we could deal with those in the Public Health Act, but to do so without amendments to those provisions would be a diabolical disaster in my view but also a very missed opportunity by this parliament.

Basically the feedback that we have all had, I think it is fair to say, is that that is a very well drafted piece of legislation. It is a piece of legislation that has served us well up until now. It has recently been the subject of a review by the Social Development Committee. I was on that committee. When we reviewed the Public Health Act, there was a deliberate omission of COVID-19 being considered as part of that review, because we were in the infancy of the COVID outbreak, but it is certainly something that the committee indicated it would go back to consider at an appropriate time.

But there are also a number of important safeguards that exist in other provisions in the Public Health Act which initially were not contemplated as part of this bill. That is where our concerns arose, and certainly I think that is where the concerns of the stakeholders that we consulted with arose, particularly in relation to safeguards, the proportionality principles, definitions around terms that the executive would be able to issue directions on, such as close contacts, ensuring that where we have the executive making a decision it is a decision that this parliament has scrutiny over.

Certainly, the establishment of an oversight committee, the establishment of a mechanism which allows those directions which would not be made by the State Coordinator but rather by the executive itself or the Governor should be subject to scrutiny by this parliament and should be disallowable instruments.

That was certainly our focus. I think it is also fair to say that from the public's perspective it is something that they would expect. They may have had trust in Grant Stevens, the State Coordinator, making decisions that were outside of our control, but I think they would have less trust in the executive. I mean no disrespect to the executive, but I do not think that that would really pass any pub test—that we would trust the executive to make directions which limit people's liberties without appropriate oversight, safeguards and proportionality principles.

So the amendments we have worked at have been targeting those particular aspects of what ought to have been in the original bill, but I am pleased to see across the chamber there have been amendments which seek to address those omissions.

I think it is also important, based on the stakeholder feedback we have had, to place on the record the importance of some appeal rights. We have all had varying positions on where we land in terms of appeal rights—we will deal with those in the committee stage—but certainly the advice SA-Best took when we dealt with appeal rights was that for those people who are, for want of a better term, detained, there ought to be appeal rights that accompany those in line with the other provisions that apply in the Public Health Act. So again we sought to replicate those in our amendments.

I think without amendments this bill would be a missed opportunity to do something now. I think there is still work that needs to be done. We have flagged our initial position of saying if we—I suppose the issue is this: if we do nothing then we risk another declaration, which none of us want, and I do not think the community wants. Despite the very short time frame that we have been given to deal with this, everybody has worked particularly hard and constructively behind the scenes to try to get some outcomes that are going to make this workable, whether that is for three months or six, I think that the amendments that have been filed seek to address those shortcomings and do so in a very constructive way.

I would also like to place on the record another issue. I think all these issues work hand in hand and make the bill better if these amendments are ultimately passed, and I am certainly hoping that that is going to be the case, but a lot of the directions that have been made to date have been queried or questioned by the public in terms of the health advice that underpins those directions. Certainly, whilst this bill will have some existing provisions in relation to high-risk settings and move over into the public health bill, there will be the ability for the government to make new directions when it comes again, so only to close contacts and to COVID-positive cases.

There are two things that we need to be clear about. We cannot do anything over and above close contacts and COVID-positive cases. We are seeking to have directions in relation to those things made disallowable, which is in line with all the advice we have received, but also I think the public has every right to expect that the advice that the government or the executive and ultimately the Governor relies on in making those directions needs to be publicly available. It needs to be put on a website, it needs to be laid before this parliament, and we all need to know what that advice is. Indeed, that will work hand in hand with the disallowance mechanism that is being proposed because when we are considering those directions we will do so with the benefit of having the public health advice in front of us.

If it does not pass the pub test I think we will all hear about it very quickly, and if it does not pass the scrutiny of this parliament then we will have the ability to disallow those directions. I cannot emphasise enough how important I think that is when you are handing powers back to the executive and insisting, as this parliament is doing, that there be parliamentary oversight of that process. It is an entirely different situation to the one that we have been in previously. I do not think any of us want to go back to that situation because we cannot get this bill passed in time.

I think the other important point, which the Hon. Michelle Lensink has just raised, is if there is another variant, if there is—God forbid—another terrible outbreak, then nothing that we are doing here stands in the way of the State Coordinator—and this is not what we want but we have to plan for the worst case scenario as recent history has shown us, but there is absolutely nothing that would prevent the State Coordinator from issuing a new declaration for another state of emergency, should that situation arise.

That is not say by any stretch that I think that the Emergency Management Act, as it is currently framed, is the appropriate vehicle for doing that, and I am urging this government to present to this parliament an alternative to that Emergency Management Act in terms of future pandemics. I think we are all on notice that this is something that is very likely to happen in the future. The legislation that we have to date simply is not equipped to deal with that. So, notwithstanding the passage of this bill, I think there is still an expectation, a very reasonable expectation by this parliament and indeed by the public that we will review the Emergency Management Act insofar as it relates to how we go about dealing with global pandemics of the scale that we have just seen.

I do have some other comments but in the interests of time I am happy to deal with those as we get to the relevant clauses of the bill, and will make further comments on them at that stage.

The Hon. S.L. GAME (16:44): I rise to speak on the South Australian Public Health (COVID-19) Amendment Bill 2022. The bill seeks to amend the South Australian Public Health Act 2011. I felt a strong moral and ethical responsibility to our constituents to speak on this matter, but also a strong responsibility to ensure to the best of my ability that any legislation had proper deliberation and care for all South Australians.

The proposed amendment bill is in part a positive development in that we are moving away from direction by unelected bureaucrats to a more cabinet-based model, and directions will only relate to those who have tested positive for COVID-19 and close contacts, although 'close contacts' perhaps warrants a firmer definition. Additionally, it does have an expiry date of six months, which may be appropriate pending the inclusion of safeguarding legislation.

However, I do have some concerns with regard to the proposed amendment bill in relation to protecting public liberty rights and ensuring there are proper constraints on enforcing officers acting out directions. I also have concerns over the accountability currently of any directions made. The six amendments I propose reflect those concerns and would restore proper protection and safeguarding mechanisms. All parties were notified of my proposed amendments last Friday morning, 13 May, to ensure a proper time for consideration.

Under 90E—Modifications of Act, in the government's South Australian Public Health (COVID-19) Amendment Bill, it states that if a public health incident or public health emergency is declare, the follow provisions do not apply: section 14(6), (7) and (9) and section 90(3), (4) and (5) of the Public Health Act 2011. All sections here proposed for removal by the government relate to safeguarding legislation for public liberty rights and safeguarding legislation to ensure proper constraints on enforcing officers. They relate to rights of appeal to the Magistrate's Court for review of directions and to ensuring that the reasonably practicable steps are taken to notify next of kin if the liberty of a person is imposed.

Section 14(9), marked for removal, is of particular concern, as I feel strongly that if, for example, a 15 year old were to have their liberty restricted, then all reasonably practicable steps to ensure a nominated person is informed should definitely be undertaken. Also of importance is the proposal to remove the requirement of an enforcing officer to consider if an individual should be managed under the Mental Health Act 2009.

I have three amendments aimed at ensuring that the same principles currently reflected by the safeguarding legislation in the Public Health Act 2011 remain enshrined for COVID declarations. I have consulted various legal sources and have been assured that these principles, as written in my submitted amendments, are practical and are reasonable for COVID declarations.

Amendment No. 1 and amendment No. 4 express the same requirement, and they are requested at two places in the bill to ensure their application both to 90B—Directions, by the Governor, and 90C—Enforcement of directions, and to ensure their application at 90E—Modifications of Act. The second insertion is important to ensure their application specifically to any declared COVID emergency.

These two amendments will state directions that restricting the liberty of a person should not be applied unless reasonably necessary, but if the department is aware that a person is vulnerable, such as an elderly person or a younger person, all practicable steps to ensure that the person's next of kin are informed will be undertaken. But if the department is aware that someone might need to be considered under the Mental Health Act 2009, they will receive this consideration, or other assistance or counselling would be provided to that individual.

The fifth amendment I propose is consistent with the existing appeal provision of section 90 in the Public Health Act 2011. It ensures the right of appeal to the Magistrate's Court for the individual, and I have also requested an addition at 14, to ensure that, were an individual unable to attend the proceedings, that reasonable steps are undertaken to provide the person with an audio or audiovisual link to the proceedings.

The next two amendments relate to ensuring transparency and accountability of any directions given. Specifically, my second amendment allows Governor's notices to be made disallowable, the same way that regulations can be made disallowable, and the third amendment requires reporting of how any delegated powers are undertaken.

It is important to give further context to my above five proposed amendments to protect safeguarding measures. The government desires to retain in the proposed amendment bill the powers allowable by the Emergency Management Act 2004. The government's proposed amendment bill states under 90C—Enforcement of directions, that an emergency officer may 'exercise any power referred to in section 25(2) of the Emergency Management Act'.

It is pertinent here to visit some of those powers: that the State Coordinator or authorised officer may enter/break into land, building, structure, vehicle; remove or destroy any building, structure, vehicle, animal or thing; that a person may be submitted to a decontamination procedure, remain isolated, segregated from other people, directed to undergo medical observation, diagnostic procedures or treatment, amongst other powers. Although under an emergency these powers may be needed, in my view it is not appropriate to retain these powers while removing necessary safeguarding legislation.

My sixth amendment relates to removing the word 'apparently' from line 20 under schedule 1—Transitional provisions, of the government's proposed bill. I do question why the word 'apparently' has been inserted here. It states:

relevant direction means a direction or requirement apparently in force…

I have had legal advice from various sources informing me that the insertion of the word 'apparently' here serves to undermine legal action in the courts with regard to the legality of vaccine mandates. For this reason, I request the removal of the word 'apparently'.

In closing, I do support the movement away from the management of the COVID pandemic under the Emergency Management Act 2004 in principle, and I support a return of lawmaking powers to the South Australian parliament and a cabinet model. However, I have concerns regarding the accountability of directions and the proper safeguarding legislation for the public in the amendment bill's current form. The details of this bill do warrant very careful consideration due to the possibility of their permanent entrenchment in our legal landscape and their potentiality to undermine action in the courts.

The Hon. K.J. MAHER (Attorney-General, Minister for Aboriginal Affairs, Minister for Industrial Relations and Public Sector) (16:51): I thank all members for their contribution. It is clear, I think, that there is a general will to transition from emergency management declarations to another form of management of this as we transition to the other side of the COVID pandemic.

The bill before us is South Australia's path to ending such declarations that have been operating since the earliest stages of the pandemic. I take this opportunity to emphasise to the council that the powers contained in this piece of legislation are limited. They do not grant the ability to implement and introduce further broad restrictions.

Under the proposed amendments to the Public Health Act, there will be no ability to enforce new broad restrictions such as future lockdowns, restrictions to the hospitality industry or the reintroduction of broad mask mandates throughout our community. The bill before us remains, in our view, the best path forward and should provide further assurance to South Australia that the government and, if supported in its form, the broader parliament are seeking to end the emergency declaration.

Regarding the amendments several members have filed, they have been considered respectfully and I understand there has been significant discussion between members who have moved amendments and particularly the health minister in another place responsible for this legislation. Our focus is firmly on the path out of emergency declarations and, in that light, I commend the bill to members.

Bill read a second time.

Standing Orders Suspension

The Hon. R.A. SIMMS (16:53): I move:

That standing orders be so far suspended to enable me to move an instruction without notice.

Motion carried.

The PRESIDENT: I note the absolute majority.

The Hon. R.A. SIMMS: I move:

That it be an instruction to the committee of the whole on the bill that it have power to consider a new schedule to amend the Parliamentary Committees Act 1991 to provide for the establishment of the COVID-19 Direction Accountability and Oversight Committee.

Motion carried.

Committee Stage

In committee.

Clause 1.

The Hon. J.M.A. LENSINK: We have quite a number of questions at clause 1. We did provide a set of questions to the government. I understand we have yet to receive answers to those, so I will raise them as well. In particular, can the minister advise whether a consolidated direction has been drafted yet and if it is available?

The Hon. K.J. MAHER: Which particular questions is the member referring to?

The Hon. J.M.A. LENSINK: We sent two pages; these were submitted to the minister's office.

The Hon. K.J. MAHER: Are these about the number of expiation notices?

The Hon. J.M.A. LENSINK: Yes.

The Hon. K.J. MAHER: I have just checked, and we do not have those collated yet.

The Hon. J.M.A. LENSINK: Okay. To my point about the consolidated direction, is there advice on that?

The Hon. K.J. MAHER: I am advised that is being worked through and consolidated at the moment as well.

The Hon. S.G. WADE: On the point that has been made about the shortness of time for consideration, this must be one of the few bills in the history of this parliament that was considered and went through all stages in the other place in one day, and it is now proposed to go through all stages in this place in one day.

The urgency somewhat bemuses me, because the government made it clear they were determined to move out of a major emergency not until 30 June. We have one declaration that will finish at the end of May, and the government indicated it was willing to do another declaration until 30 June. Whilst the opposition is going to support the progress of this bill today, I think to suggest it is an urgent matter and therefore needs to go through both houses in a single day does not have substance.

Members interjecting:

The CHAIR: Order!

The Hon. S.G. WADE: In particular, I am concerned about this consolidated direction. The opposition was not aware that it was the intention of the government to issue another substantial direction until yesterday's briefing. In broad terms, what we were told is that of the 13 or 15 directions that are currently in the act I think five were going to be rolled into a new direction, and that direction is not available to us.

We are in an extraordinary situation of being asked to pass a bill which, by the force of it becoming law, will sustain and maintain directions that we have not even seen and, under this act, will not have the opportunity to disallow, because they would be pre-existing under this legislation. So I do express concern that, on the face of it, the legislation, the second reading speeches and the like, suggested that we were being asked to maintain directions that already existed. From the briefing yesterday it was made clear we are being asked to maintain directions we have not even seen.

The Hon. K.J. MAHER: I might just respond to that, sir. I think it is patently ridiculous of the former health minister, the Hon. Stephen Wade, to suggest that a bill that has sat here on the Notice Paper for two weeks, passed during the last sitting week in the House of Assembly, is being rushed through. I will remind the Hon. Stephen Wade that when there were previous amendments and regimes put in place, his then government gave briefings on a Monday night to the opposition and did not even give the crossbench briefings. They then requested that bills pass all stages of both houses of parliament in one day. I am not going to sit here and accept criticism from the former health minister that having a bill that sat on this Notice Paper for two weeks is rushing it through. It is just not.

It is just amazing that the Hon. Stephen Wade has criticism that the police commissioner might consolidate directions and make directions, when we were asked to pass legislation within one day for directions when we had no idea what these might become in the future. However, we knew it was the best way to manage the pandemic for South Australia. I do not really accept anything that the Hon. Stephen Wade said as having any merit whatsoever.

The Hon. S.G. WADE: Could the government advise when the consolidated direction will be available to this house?

The Hon. K.J. MAHER: I am advised that they should be ready sometime within the next week or so.

The Hon. S.G. WADE: Can the minister advise: in what ways is it anticipated that the new consolidated direction will vary from the directions that are already in place?

The Hon. K.J. MAHER: I am advised: very little. I am advised it will combine the activities directions, the arrivals directions and the exposure site directions that appear in various directions into consolidated directions in those areas. So my advice is: very little.

The Hon. S.G. WADE: Is it the advice of the minister that all the State Coordinator is seeking to do is to make five directions into one? Is that the only outcome that the State Coordinator seeks to achieve by issuing this consolidated direction?

The Hon. K.J. MAHER: I am advised it is effectively to combine the directions that have cut across a range of activities, not introduce new directions.

The Hon. S.G. WADE: Is it the advice of the minister that there will be no substantive change to the contents of the directions as they go from five or more separate directions into one consolidated direction?

The Hon. K.J. MAHER: I am advised there is no intention for substantive change. It is effectively combining a range of areas into consolidated measures in those areas of activities directions, arrivals directions and exposure site directions.

The Hon. S.G. WADE: Mr Chair, you might need to guide me to make sure I stay within standing orders. If I was to anticipate an amendment by the Hon. Mr Simms later today—if Mr Simms' proposal for an oversight committee was passed, would the oversight committee be able to consider and disallow the process, whatever process is in the amendment, of the consolidated direction?

The Hon. K.J. MAHER: That is a question for the mover of the amendment.

The Hon. J.M.A. LENSINK: What, do you not know the answer?

The CHAIR: Attorney, do you wish to answer?

The Hon. K.J. MAHER: When that amendment comes up, I am sure the Hon. Stephen Wade will request of the mover that question.

The Hon. S.G. WADE: I thank the minister for his comments. The Marshall Liberal government appreciated the significant pressure that health workers were under during the COVID pandemic. One of the tangible measures that we took was to provide free hospital car parking for health workers for the duration of the major emergency. If it is the government's intention to let the major emergency lapse at the end of May or at the end of June, will free hospital car parking cease at that time?

The Hon. K.J. MAHER: If I am wrong, I am sure I will be corrected, but I am not sure that the member is correct in saying it is up to the government to end the major emergency. As I understand it, it is the police commissioner who does that. In relation to his question about hospital car parking, I can inform the honourable member that I do not have any advice in relation to that. In relation to his last question, that I referred to the Hon. Robert Simms, I am advised that the committee would look at future things that might be issued under the new regime, not past ones that the police commissioner has issued.

The Hon. S.G. WADE: I thank the minister for his further advice on the issue of the consolidated direction, and again I express my concern. We are being asked to, if you like, grandfather a direction we have not even seen, but I have made that point.

In relation to free hospital car parking and the minister's comment that it is not the government's prerogative to extend the major emergency, unless I misunderstood him that is not the case. Certainly, the recommendation from the Executive Council to the Governor can only be made on the recommendation of the State Coordinator, but it is still Executive Council that makes the decision.

The Hon. Connie Bonaros quite rightly reflected on the need to make sure that all the legislation in our stable, for want of a better word, is fit for purpose, and she quite rightly highlighted the need to review the Emergency Management Act. I would ask the minister: does the government have any current plans for a review of the Emergency Management Act in the context of the COVID-19 experience?

The Hon. K.J. MAHER: We can check to see if there are any plans, but I am not aware of those.

The Hon. S.G. WADE: Again to follow in the footsteps of the Hon. Connie Bonaros, the Hon. Connie Bonaros reminded the parliament that in 2020 the Social Development Committee reported on a review of the South Australian Public Health Act 2011. As the Hon. Connie Bonaros rightly recalled, the Social Development Committee specifically reserved further consideration of COVID matters in that particular report.

Considering that the first case of COVID in South Australia was on 1 February and the committee report was tabled in July 2020, I think that was very wise, because we have had another almost two years of the pandemic since. On page 5 of that report, the Social Development Committee makes the recommendation that:

At the expiration of the declaration of a major emergency made by the State Coordinator under subsection 23(1) of the Emergency Management Act 2004 on 22 March 2020 and all subsequent declarations and any extensions of declarations made by the Governor of South Australia, the amendments and modifications to the South Australian Public Health Act 2011, which came about as a result of COVID-19, be considered for review by the Social Development Committee.

I do note that the committee specifically talked about 'at the expiration of the declaration of a major emergency', which is what this house is considering today. I ask the minister: is it the intention of the government that the Social Development Committee be asked to further report on the South Australian Public Health Act in compliance with their recommendation in the 43rd report?

The Hon. K.J. MAHER: I do not have any advice and I am not aware of an intention to do that, but of course it is up to the new parliament and the chambers of the parliament what they might refer to the committee in relation to the recommendations made from the last one.

The Hon. C. BONAROS: In terms of further clarification, I think there is an expectation that the committee, of its own motion, could do a body of work that it has already indicated ought to be done, because they were not in a position to do it at the time.

The Hon. K.J. MAHER: I appreciate that clarification. I am not and do not think I ever have been a member of that committee, but as I understand it either chamber of parliament can refer something to the committee or the committee can, by its own deliberations, decide to take on a body of work. I am sure that committee will, if it sees fit, do just that.

The Hon. S.G. WADE: If we are outing ourselves, I am a proud former member of that committee and respect their work. Could I make the general point to the parliament, to the Social Development Committee and to the government that I think it would be unhelpful if the committee was to do a review of the Public Health Act and some other entity was to do a review of the Emergency Management Act. The risk of it not interweaving would be significant.

Regarding Emergency Management Act reviews, the only one I can recall, and I might be corrected, is there was an Emergency Management Act review into the conduct relating to bushfires. If I remember rightly, it was a former federal police commissioner—

An honourable member interjecting:

The Hon. S.G. WADE: —deputy commissioner. I make the point that whilst there is a pattern, if you like, for Emergency Management Act reviews, obviously the COVID pandemic might necessitate a different model. I think there is an opportunity to try to look at both the Public Health Act and the Emergency Management Act because, as we see in the issues being considered today, there is the issue of, shall we say, moving in and moving out.

Certainly, when we were moving in we were only under the public health emergency for one week before we went into the Emergency Management Act, but as we can see with the bill before us there is a significant transition period in the tail, and it would be good to consider the interaction of the two acts in a coordinated way.

The Hon. N.J. CENTOFANTI: I think the minister made some rather unfavourable comments in regard to the process of passing legislation in this chamber when we were in government, and the minister perhaps misses the difference between what we faced and were confronted with in government at the height of the pandemic versus where we are now as a nation, as a state and as a community in attempting to live with COVID-19.

It is my understanding that we are also waiting on advice in regard to modelling that the government has received in regard to this bill going forward and possible case numbers. Is that modelling available? When will we be able to see that modelling or perhaps could the chamber be advised of this modelling going forward in the context of this bill?

The Hon. K.J. MAHER: I am advised that the last modelling was undertaken on 25 April and updated modelling is likely to be finalised, I am informed, on the week of 23 May.

The Hon. S.G. WADE: I thank the minister for the answer. The modelling update received before the 25 April set was dated 22 March. The honourable minister advises the house that the next will be about 23 May. Does that suggest the government is establishing a monthly pattern of modelling updates and releases?

The Hon. K.J. MAHER: My advice is there is not any plan for monthly on the 20-something of the month, that is just when they have been done and available, depending on cases at this stage.

The Hon. S.G. WADE: At the opposition briefing yesterday, we were advised that the current modelling does not factor in the impact of influenza. Is that possible epidemiologically and, if so, is it intended?

The Hon. K.J. MAHER: My advice is that it is technically possible but very difficult, and the initial advice from the University of Adelaide is that it could be done but it would require a lot of effort and a lot of work and a rebuild of the model.

The Hon. T.A. FRANKS: My questions are around the current directions and those who have been fined as a result of the various directions that have been made as we have progressed through this pandemic. How many people have been fined for breaching the directions around the issue of dancing and how many are before the courts at the moment?

The Hon. K.J. MAHER: Sorry, I missed the last part of that.

The Hon. T.A. FRANKS: I will break it into two. How many have been fined around the breaches that involved dancing? Then, more broadly—but I would like it also as a subset to include dancing—how many cases are currently being contested by the court, so people have not paid the fines and they are taking it to court? I am asking for the overall number but then specifically also those that involve dancing. I do know of one particular case that has seen a breach for dancing now currently being challenged in the courts.

The Hon. K.J. MAHER: I am advised that we do not have a breakdown of those figures but certainly we can take it on notice and, if they can be extrapolated, undertake to provide them to the honourable member.

The Hon. T.A. FRANKS: The government does not know how many cases are currently before the courts of people challenging their fines?

The Hon. K.J. MAHER: The health advice I have is they are not aware of that. Certainly, we will see if SAPOL has those available and can make them available.

The Hon. T.A. FRANKS: What time frame will those be available within, given this has actually been our first chance to discuss the current operations of the COVID restrictions and we have been in both caretaker mode and then election mode and parliament has only now resumed? I would have thought this sort of information would have been something that would support a debate on how we move forward here. What is the time frame for getting those answers?

The Hon. K.J. MAHER: I am advised that is really dependent on SAPOL, but we will see as soon as we possibly can if they are available.

The Hon. S.G. WADE: If it might inform the honourable member, the opposition asked similar questions six days ago and we still do not have an answer.

The Hon. R.A. SIMMS: I would like to turn the Attorney's attention to penalties. I am just keen to understand whether there is any particular matrix that is used by SAPOL in terms of applying penalties and in what circumstances they are applied—the full range, not just the fines.

The Hon. K.J. MAHER: My advice is that the police use the fines as a last resort. My advice is that the police much prefer an educative approach rather than going for fines, but it is fined at the set level. If things find their way to a prosecution, that is up to the court to impose a sentence based on the range that is available to them.

The Hon. R.A. SIMMS: In what circumstances are fines pursued?

The Hon. K.J. MAHER: I am advised that is probably a question that would need further information from SAPOL and we can see if there is further and better information. My advice is that it tends to be very deliberate and recurrent offending when SAPOL would use that as a last resort.

The Hon. T.A. FRANKS: As a supplementary on that and following on from my previous question, can the particulars be given of the Sugar Laneway that, during the Fringe, had its proprietor fined for supposedly dancing, although he maintains he did not move his feet, and why there was a silent disco in the street simply metres from that laneway and nobody there received a fine for dancing when they were actually dancing and he is now facing the courts for jiggling?

The Hon. K.J. MAHER: We do not have the particulars on those matters, but I am happy to pass them on to SAPOL to see what response can be brought back for the honourable member.

The Hon. J.M.A. LENSINK: I am not trying to labour the point too much here, but just for the record the set of questions were emailed to the minister's office on 11 May that we have not received a response to as yet. My question for the minster is: of those 12 questions we asked, which were similar in nature to some of the questions from the Hon. Tammy Franks about expiation notices, arrests, charges, prosecutions and the like, does the government have any responses to any of those 12 questions available that can be placed on the record?

The Hon. K.J. MAHER: My advice is the health officials do not have any of those responses yet, but as soon as we are able to, we will provide them.

The Hon. J.M.A. LENSINK: Notwithstanding that we will be continuing the debate on this, will the government make a commitment to provide that information to us?

The Hon. K.J. MAHER: I think I can speak on behalf of the health minister that when information is received from SAPOL that we can provide, we will do so.

The Hon. C. BONAROS: I just want to go back to a point the Attorney made in relation to a response to the Hon. Mr Wade about those directions, which will effectively be coming into this bill. Just to confirm, the advice to us from the government has been that those directions, in their convoluted form—they have become a little bit messy—are going to be reshaped into the workable form, but there is nothing new in there, there are no surprises. These are existing directions that we all know and like or dislike. They apply to high-risk settings, and they are the directions that are effectively going to transition over to the new bill.

There are, obviously, also existing directions around close contacts and COVID-positive cases. This bill aims to enable the executive to make new directions around close contacts and COVID-positive cases. We are not intending to change any of the existing directions other than to put them in a more workable format, and they are limited to high-risk settings. If you can answer that part of the question first, then I will ask you a second part, if you like.

The Hon. K.J. MAHER: My advice is quite simple: yes, that is the intention. There will be no substantive differences but, as the honourable member has outlined, it will bring directions that have been issued over time together in a comprehensive form.

The Hon. C. BONAROS: I think one of the examples the Attorney gave, which piqued my interest, was arrivals. At the moment, I think the only rule that applies to international arrivals is, for instance, a RAT test, but that is something that exists now that would be able to be dealt with in any event under the new direction. I am just seeking clarity that when we are talking about those that are transitioning over, we are talking about things that exist now. We are not talking about anything new? In any event, because you are dealing with having to substantiate or otherwise your COVID-positive or negative result, that is something that could apply in any event under the new directions.

The Hon. K.J. MAHER: My advice is yes.

The Hon. R.A. SIMMS: I would like to ask the government a question around access support for people with mental health conditions or people who are vulnerable. What steps does the government take to make sure that they understand their obligations under the health directions?

The Hon. K.J. MAHER: I am advised that not just Health but the Department of Human Services have been involved and there has been substantial work that has gone on and a lot learnt over these two years about providing those services to people who need them, particularly during the last two years of the pandemic.

The Hon. R.A. SIMMS: Can the minister give an undertaking that those people are then provided with support in terms of understanding what their obligations are under the directions?

The Hon. K.J. MAHER: My advice is, yes, as best as those departments can.

The Hon. S.G. WADE: I would like to pick up an issue the Hon. Robert Simms raised in terms of, if you like, the consideration of prosecution options within the police. My understanding from dealing with the police is that their first resort is to a caution. If a caution is not appropriate, they will issue an expiation fine. My understanding, and the Attorney might correct my limited understanding, is that if they want to go beyond the expiation then they would need to, through the police prosecutions or the DPP, initiate a prosecution process, and that it is not for them to set the fine, it is for the courts to set the fine. In particular, if it is an indictable offence then the DPP would be involved in the decision-making process.

That is a well-developed process that was, shall we say, fine-tuned in the context of COVID, but these same directions are now going to transfer over to Health which does not have that, if you like, infrastructure and that policy framework. So I would seek advice from the Attorney as to what policy framework will be in place such that SA Health will be in a position to take over the prosecution function, for want of a better word, that the police have been exercising over the last 2½ years.

The Hon. K.J. MAHER: I am advised that in a range of areas, such as failure to comply with the vaccine mandate, it is already Health that are doing a lot of the investigation and preparation work, obviously working with the police in doing so, and those functions will continue and Health will use the experiences there as to what they do in the future.

The Hon. S.G. WADE: With all due respect, I see a difference between what I think the minister is referring to, which is what I would call compliance activity, checking whether people have complied. The difference is pursuing people who have erred, in imposing an expiation notice, pursuing a fine and, thirdly, seeking imprisonment. One of the opposition's concerns is that we not only have the highest maximum imprisonment compared with any other state or territory in relation to COVID but we are twice the level.

I certainly pay tribute to SA Police and particularly the State Coordinator, Commissioner Grant Stevens, for their work to maintain the positive engagement of the community, but having punitive provisions like this available in a public health bill is concerning and then, if you like, that prosecution responsibility is resting with people who I have huge respect for but they are health clinicians. They are neither police nor courts, they are Health, and we are transferring—and the government is bragging about this—extremely high penalties from a police model to a health model.

The Hon. K.J. MAHER: I am advised that for some time now Health has been involved in the compliance function. It is also the case that these penalties do not differ from those which have applied over the last two years, so if the honourable member thinks it has been outrageously high over the last two years, I am surprised he has not moved to change it previously. I am further advised that it will not be health officials going down to mount prosecutions for breaches. It will be as is done with many other departments, and the prosecutor or a service of government, of different agencies of government, who are adept and experienced at doing this would be used.

The Hon. S.G. WADE: Do I understand the Attorney-General to have just told us that the legal unit within the Department for Health and Wellbeing will be undertaking the prosecution function in relation to the Public Health Act?

The Hon. K.J. MAHER: I am advised that, as has happened previously, the compliance officers who have investigation experience in health will, as happens in many other departments, build the brief and then hand it over to prosecuting authorities.

The Hon. F. PANGALLO: When it comes to granting exemptions, which is covered in the bill, can the minister give me a definition of what ‘expeditiously’ means when handling applications for exemption?

The Hon. K.J. MAHER: I am advised that it really depends on a case-by-case basis, particularly exemptions from vaccination mandates can be quite complicated and take some time.

The Hon. F. PANGALLO: It is not just a question about vaccination mandates; there were many other reasons given to SA Health during the period of the emergency for seeking exemptions. It may have been for work-related reasons, it may have been because people had existing health conditions, it may have been for compassionate grounds. Many complaints were filed through our office that people were not being heard or not getting answers in an adequate time to be able to address what their needs were.

What I am saying is that expeditiously can mean anything. Essentially, it is a quick, hasty or whatever decision needs to be made. What does that mean? Is it seven days, 14 days, or whatever? Why cannot people, particularly in the situation of a pandemic—and there are critical outcomes for them—get a more defined period in which their exemption applications will be heard and addressed quickly?

The Hon. K.J. MAHER: My advice is that now, with significantly fewer restrictions, there are many fewer restrictions, so things are being done more quickly, but I think all of us who have constituents who contact us would have had over the last two years of the pandemic stories of stuff not happening as quickly and efficiently as people would like in order to get on with their lives and to do very important things—coming into South Australia or being allowed to do things. I am advised that with fewer restrictions there have been fewer exemptions, and things are moving more quickly.

The Hon. C. BONAROS: Just on the same issue—and I am glad my colleague raised that—I am sure the minister would consider that, even if it were in relation to a vaccine exemption, something in the order of six months, or predating caretaker mode in fact, would not be an appropriate length of time for somebody to have to wait for an exemption or for a decision in relation to either an initial exemption application or indeed a review of such application.

The Hon. K.J. MAHER: I appreciate what the honourable member says. The advice I have is that the health officials are not aware of a six-month time frame, but if that is the case, I am sure the health minister would be most pleased to hear about it to see, if it is still unresolved, what can be done.

The Hon. C. BONAROS: Just confirming for the record, going forward those issues may be raised with the minister. I understand to date any of those applications that have been lodged have been determined by Professor Spurrier only and so that may have contributed. I might be wrong, but certainly the feedback we have had is that those applications have been determined by Professor Spurrier and her agency or department solely. That is one of the reasons that contributed to some of these delays. Can we confirm (a) whether that is the case and (b) whether we raise a case specifically with the minister that there would be an expectation that that would be passed on to the appropriate people but there would be more than one person considering these applications?

The Hon. K.J. MAHER: I am advised that it is correct, as the member has outlined, that effectively under the direction it is the Chief Public Health Officer who ultimately signs off on exemptions.

The Hon. C. BONAROS: There would be other people there who are assisting that process, I am assuming.

The Hon. K.J. MAHER: The Communicable Disease Control Branch are heavily involved, and I am advised that, yes, there are other people who are involved in that process.

The Hon. T.A. FRANKS: My question is about the identity cards that have been issued to emergency officers. How many have been issued for the purposes of what was issued under section 17 of the Emergency Management Act but will become those recognised going forward by the Public Health Act?

The Hon. K.J. MAHER: Again, it is an area that I am advised is managed by SAPOL, but I am happy to take that on notice and if we can provide a response we will do so.

The Hon. T.A. FRANKS: Why is there not an adviser here who can answer questions about the bill?

The Hon. K.J. MAHER: I think the health advisers we have here have been most helpful in answering questions about the bill. I am not sure that, even if there was a SAPOL adviser, necessarily all the questions would be able to be answered on the spot. As I have said, I think they are important questions, and I am happy to pass them on and bring back an answer if it is available.

The Hon. T.A. FRANKS: Is the minister aware of section 3—Emergency officers, which talks about these identity cards? Why cannot you answer questions about the identity cards that are outlined in the bill?

The Hon. K.J. MAHER: The question about what is proposed in the bill we can have a look at particularly when we get to that clause, but in terms of ones already issued, we just do not have that information available.

The Hon. T.A. FRANKS: I flag that when I get to that clause I will have these same questions and again hope that the government will have organised an adviser who can answer the questions about the bill.

The CHAIR: I am not sure that that requires a response.

The Hon. T.A. FRANKS: I will just at this point flag that I do not have any more questions at clause 1, but I do note the contribution at clause 1 with regard to the speed of the passage of this legislation and the briefings offered and the like. I will note that the crossbenchers were offered a briefing on this bill in the last sitting week during private members' business time, and I would hope that the government will not continue that practice. It was most unfortunate. It meant neither myself nor the Hon. Robert Simms could attend because we were actually speaking to pieces of legislation in the chamber as you offered a briefing on this bill.

Clause passed.

Clause 2 passed.

New clause 2A.

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

Amendment No 1 [Lensink–1]—

Page 2, after line 8—Insert:

2A—Amendment of section 14—Specific principles—Parts 10 and 11

(1) Section 14, heading—delete ‘and 11’ and substitute:

, 11 and 11A

(2) Section 14(1)—delete ‘and Part 11’ and substitute:

, Part 11 and Part 11A

(3) Section 14(5)—delete ‘or Part 11’ and substitute:

, Part 11 or Part 11A

(4) Section 14(7)—delete ‘or Part 11’ and substitute:

, Part 11 or Part 11A

This particular amendment backs up our view that we believe all our citizens should have the right to be protected from disease and the right to free movement and association. This government bill proposes to exclude provisions of the Public Health Act that would otherwise protect citizens' rights and remove capacity for appeals.

We are seeking to amend the bill to oppose the government's curtailing of principles that exist under section 14(6), restricting liberty only if it is the only effective way to protect public health, and section 14(7), the action least infringing on the rights of the individual must be the power that is exercised, and section 14(9), if restricting liberty next of kin needs to be notified. We note that these particular provisions have existed for some time and that they have as their underlying principle that the lightest touch be applied.

We believe that if the government considers that the public situation has eased to the point that we can leave the major emergency and move from the Emergency Management Act to the Public Health Act, then it should also be the case that the normal provisions of public health should apply. If the public health situation escalates, the Emergency Management Act can be activated through a fresh application. An escalation could be a worsening of the public health situation or a backlog in applications for reviews and appeals.

The Hon. K.J. MAHER: The government does not support this amendment. This amendment inserts a new section into the bill to identify the principles of the act that apply to part 11A. In doing so, this would amend the body of the overall Public Health Act, and it is inconsistent with the short-term approach that is intended by the bill to essentially quarantine it to that particular area of the bill. We do not support it.

The committee divided on the new clause:

Ayes 7

Noes 12

Majority 5

AYES
Centofanti, N.J. Curran, L.A. Game, S.L.
Girolamo, H.M. Hood, D.G.E. Lensink, J.M.A. (teller)
Wade, S.G.
NOES
Bonaros, C. Bourke, E.S. Franks, T.A.
Hanson, J.E. Hunter, I.K. Maher, K.J. (teller)
Martin, R.B. Ngo, T.T. Pangallo, F.
Scriven, C.M. Simms, R.A. Wortley, R.P.
PAIRS
Lee, J.S. Pnevmatikos, I.

New clause thus negatived.

Clause 3.

The Hon. C. BONAROS: I move:

Amendment No. 1 [Bonaros–2]—

Page 3, after line 2—Insert:

90AB—Principles

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

Perhaps for the benefit of the chamber, it might be easier to go through a little explanation process. The Hon. Ms Game has an identical amendment to my amendment. We have effectively moved the same amendment when it comes to the principles being inserted into the bill, except mine seeks to exclude from section 14 subsections (6), (7) and (9). Ms Game seeks in a further amendment to deal with subsections (6), (7) and (9), but in a different way.

My amendment No. 1 [Bonaros-2] seeks to enshrine in this bill the principles set out in section 14 other than section 14(6), (7) and (9) and make them apply for the purposes of this part in the same way as they apply to parts 10 and 11 of the Public Health Act. That is the first step.

By way of further clarification, I think it is fair to say that all of us who looked at these provisions sought advice about the consistent or inconsistent nature of 14(6), (7) and (9) with the ability to make someone isolate or quarantine. The suggestion was that (6), (7) and (9) are not really compatible with the requirement to actually make somebody or direct somebody to isolate or quarantine, whether they are COVID-positive or whether they are a close contact. That is the first issue.

When we get to the Hon. Ms Game's amendment, she seeks to deal with (6), (7) and (9) in a slightly different way. It is a separate consideration in a separate amendment and will be dealt with in a slightly different way. That is the first part. I hope members are following so far. I might just speak to that amendment itself, because I think it is fair to say that across the chamber there is certainly support from everybody for the specific principles that are enshrined in section 14 to be incorporated into this bill, except from my position I am saying to the exclusion of (6), (7) and (9) and I have just explained the reason for that.

The briefings and the engagement we have had with stakeholders in relation to this bill have focused very much on the need to insert these specific principles into this bill and, indeed, when I went back to those same stakeholders and suggested to them that the advice we had was that we would be excluding (6), (7) and (9), there was an acknowledgement that they were inconsistent or incompatible, if you like, with the fact that we are effectively removing people's liberties by virtue of the fact that we are directing somebody to isolate if they are either a close contact or a COVID-positive case.

They are not compatible in that sense. That is the advice we have. I went back to stakeholders with that advice. The acknowledgement to me was, 'Okay, we accept that, but there is absolutely no reason why the rest of those provisions, the proportionality principles and those specific principles which play a very important role in part 14 of the Public Health Act, should not apply when it comes to the COVID provisions of this bill.'

Just for the benefit of members, that specific section that I am talking about—I think it is important to place this on the record and I will; it is a bit long, but I am going to place it on the record—sets out that:

(2) The overriding principle is that members of the community have a right to be protected from a person whose infectious state or whose behaviour may present a risk, or an increased risk, of the transmission of a controlled notifiable condition.

(3) A person who has a controlled notifiable condition that is capable of being transmitted to 1 or more other persons has a responsibility to take reasonable steps or precautions to avoid placing others at risk on account of the controlled notifiable condition.

(4) A person must not, insofar as is reasonably practicable, act in a manner that will place himself or herself at risk of contracting a controlled notifiable condition that is capable of being transmitted.

(5) Subject to the overriding principle and any steps reasonably necessary to protect, or to minimise risks to, public health, and without limiting any power under Part 10 or Part 11, a person who may be the subject of an order, direction or requirement under either Part is entitled to expect—

(a) to have his or her privacy respected and to have the benefit of patient confidentiality; and

(b) to be afforded appropriate care and treatment, and to have his or her dignity respected, without any discrimination other than that reasonably necessary to protect public health; and

(c) insofar as is reasonably practicable and appropriate, to be given a reasonable opportunity to participate in decision-making processes that relate to the person on an individual basis, and to be given reasons for any decisions made on such a basis; and

(d) to be allowed to decide freely for himself or herself on an informed basis whether or not to undergo medical treatment or, in a case involving a child under the age of 16 years, to have his or her parent or guardian allowed to decide freely on an informed basis whether or not the child should undergo medical treatment; and

(e) to be subject to restrictions (if any) that are proportionate to any risks presented to others (taking into account the nature of the disease or medical condition, the person's state of health, the person's behaviour or proposed or threatened behaviours, and any other relevant factor); and

(f) that the least restrictive means necessary to prevent the spread of disease be adopted when isolating or quarantining a person at the person's home or on other premises under this Act; and

(g) that his or her needs, including, but not limited to the provision of—

(i) adequate food, clothing, shelter and medical care; and

(ii) a telephone or other appropriate method by which the person may communicate with others, will be addressed in a reasonable and competent manner to the extent that the person is unable or restricted in his or her own capacity to meet such needs; and

(h) that any premises at which the person must reside as a result of an order, direction or requirement (other than the person's home), are—

(i) maintained according to safe and hygienic standards; and

(ii) to the extent possible, maintained in a way that is respectful to the person's cultural and religious beliefs; and

(iii) designed or managed to minimise the likelihood that—

(A) infection may be transmitted; and

(B) the person may be subjected to harm or further harm

This is where we get to (6), (7) and (9), the next requirement. I think it is important to place this on the record because we will be addressing it through the Hon. Ms Game's amendment. The act provides:

(6) Any requirement restricting the liberty of a person should not be imposed unless it is the only effective way remaining to ensure that the health of the public is not endangered or likely to be endangered.

(7) Without limiting subsection (6), if a power is to be exercised under Part 10...so far as is reasonably practicable, the power that least infringes on the rights of individuals must be the power that is exercised, unless to do so would involve the use of measures that are likely to be less effective in protecting or minimising risk to public health.

(8)—

which our amendment does incorporate, provides—

Any requirement restricting the liberty of 2 or more members of the 1 family should ensure, so far as is desirable and reasonably practicable and so far as is appropriate to the requirements for the protection of public health, that the family members reside at the same place.

(9)—

which, again, is one of the ones that is in contention, provides—

If a requirement restricting the liberty of a person is imposed, all reasonably practicable steps must be taken to ensure that the person's next of kin, or a nominated person, is informed (unless the person to whom the requirement relates instructs otherwise).

Again, as I indicated, there were three amendments, which were effectively the same, that dealt with this issue: there was a set filed by me, there was a set filed by the Hon. Ms Game and there was a set filed by the Hon. Mr Simms. I sought to exclude (6), (7) and (9) on the basis that the advice we had was that they were incompatible or inconsistent with the very nature of directing somebody to isolate because they were either COVID-positive or because they were a close contact.

This amendment, in its current form, from my perspective, is one of the most key amendments that we are going to deal with because it addresses the issues that have been highlighted by the Law Society and other experts in terms of providing safeguards and the proportionality principles when it comes to dealing with COVID.

The Hon. Ms Game will speak to this herself, obviously, but she has had advice, as I understand it, that works around the issues that we have been advised of, so we will deal with that when we get to it. But for the moment, the amendment that we are dealing with seeks to insert those principles—the proportionality principles, if you like—the specific principles that are enshrined in the Public Health Act, so that they apply equally to close contacts and COVID-positive cases.

Again, as I have indicated during my second reading speech and as I have indicated during clause 1, this is really one of those pivotal or key amendments that is required in this bill to ensure the level of safeguards, transparency and accountability that certainly we have been seeking and that other members in this chamber have been seeking and that were lacking from the government's original drafting. That is what this amendment seeks to do. I will indicate for the record, though, my acknowledgement of the work the Hon. Ms Game has done in terms of trying to address that inconsistency by dealing with those provisions in a different way.

I will speak to those when we get to those amendments but, effectively, we will have this amendment and then there will be a further amendment which seeks to address the inconsistency with how this sits with the fact that we are effectively removing people's liberties by requiring them to isolate if they are a close contact or a COVID-positive case.

I hope that provides some level of explanation, but it is really a key amendment in terms of providing those safeguards and those transparency measures that have been brought to our attention by the experts, including the Law Society.

The Hon. K.J. MAHER: I thank the honourable member for her amendment and I might, by the way, give a bit of guidance as to how we are going to go tonight. I think I said earlier in the week to members that we would intend to finish at the usual time of 6pm and come early on Wednesday and probably Thursday.

I think people have a letter saying that we will be back at 11am tomorrow, so it is my intention that we will finish with this amendment. When we come back at 11am tomorrow, I think the next one in order is the Hon. Sarah Game's amendment and we will start with that. We intend to finish this amendment tonight and then start tomorrow with the next amendment.

The CHAIR: Attorney, we need the Hon. Ms Game to move her amendment tonight. She can speak to that either tonight or tomorrow when we resume.

The Hon. K.J. MAHER: It needs to be moved tonight?

The CHAIR: They are alternative amendments, so we have already indicated that they are both going to be moved at the same time.

The Hon. K.J. MAHER: We do not have to vote on them?

The CHAIR: No, I suspect that we will not get through them tonight.

The Hon. K.J. MAHER: I understand that. Maybe if people wish to speak to the Hon. Connie Bonaros's amendment, and I do accept that if it is one or the other we are better off—rather than trying to plough on and compare and contrast them both, which might actually take a bit of time—voting on both of them tomorrow rather than putting just one and not the other.

Just quickly, the government will be supporting the Hon. Connie Bonaros's amendment. It seeks to amend the legislation to state that the principles of the Public Health Act apply, except for several principles that are specifically disapplied. In the government's view, this amendment seeks to provide clarity and assurance on the many important public health principles that will remain in place over the period that this occurs.

That is the government's view. I welcome, in the few minutes that we have, people putting forward further views, if they wish, and then we will come back and vote tomorrow at 11 o'clock on the Bonaros amendment and then probably consider the alternative before they vote.

The CHAIR: I am sorry, Attorney, the message that was reasonably clear that I put out when we started discussing these amendments was that we would let the Hon. Ms Bonaros move hers and the Hon. Ms Game move hers and then we were going to have a discussion on the merits of the amendments and then we will put them separately.

The Hon. K.J. MAHER: We do not have to do that tonight?

The CHAIR: We do not have to do that tonight. Just as long as the Hon. Ms Game understands she can move her amendment tomorrow.

Progress reported; committee to sit again.


At 18:05 the council adjourned until Wednesday 18 May 2022 at 11:00.


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