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Legislative Council - Fifty-Fifth Parliament, First Session (55-1)
2022-05-18 Daily Xml
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Bills

South Australian Public Health (COVID-19) Amendment Bill

Committee Stage

In committee.

(Continued from 17 May 2022.)

Clause 3.

The CHAIR: We are currently on clause 3. The Hon. Ms Bonaros has moved an amendment. What I intend to do is call on the Hon. Ms Game to move her amendment to the amendment and then speak to that, and then we will open up to the committee to discuss the merits of the amendment to the amendment.

The Hon. S.L. GAME: I move:

Amendment No 1 [Game–2]—

Amendment to Amendment No 1 [Bonaros-2]—Clause 3, page 3, after line 2—

After the present contents of inserted section 90AB (now to be designated as subsection (1)) insert:

(2) The following principles and requirements will apply instead of section 14(6), (7) and (9):

(a) directions restricting the liberty of a person, or a class of person, should not be imposed unless those directions are reasonably necessary to ensure that the health of the public is not endangered or likely to be endangered;

(b) if the Department is aware that a person who is subject to directions restricting their liberty is a vulnerable person who may need assistance to understand or comply with the directions, 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 directions relate instructs otherwise);

(c) if the Department is aware that a person who is subject to directions restricting their liberty is a person who may require mental health services, the Department must consider whether any action should be taken under the Mental Health Act 2009 or other assistance or counselling provided to the person.

This amendment deals with section 90E—Modifications of Act, in the government's South Australian Public Health (COVID-19) Amendment Bill 2022, where it states that if a public health incident or public health emergency is declared the following provisions do not apply: section 14(6), (7) and (9) and section 90(3), (4) and (5) of the Public Health Act.

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. I consulted with various legal sources and have been assured that the principles as written in my submitted amendments are practical and they are reasonable for COVID declarations.

Essentially, in paragraph (a) directions restricting the liberty of a person are only imposed if they are reasonably necessary to ensure that the health of the public is not endangered. I have been advised that really this should have been done anyway by the decision-maker, so I hope there would be no problem incorporating that into the legislation.

Paragraph (b) has been worded very carefully and so has paragraph (c) to make it reasonable and practical. It states that if the department is aware that a person who is subject to directions is a vulnerable person—so if they are aware—then all reasonably practicable steps are taken to ensure that their next of kin or a nominated person is informed. I think a good example would be a young person or an elderly person. I cannot see why, if the department was aware on speaking to them that they were vulnerable, they would not take a reasonable practical step to inform next of kin.

Paragraph (c) again says that if the department is aware that the person who is having their liberty restricted might require mental health services, then they should consider whether counselling is provided or whether that individual is managed under the Mental Health Act 2009.

The CHAIR: Given that it is an amendment to the Hon. Ms Bonaros's amendment, I would look to the Hon. Ms Bonaros to see if she has a comment first before I go to the committee.

The Hon. C. BONAROS: I thank the honourable member for her explanation in relation to these clauses. I have already signalled to the honourable member that when it comes to paragraphs (b) and (c) it is my view that I think these are things that, as a matter of course, we probably already are doing. I think there has been discussion in this place and discussion in committees and so forth around assisting those vulnerable persons in our community when it comes to ensuring that they are conforming with any directions that have been issued to them, and the same goes when it comes to mental health and anyone who may be covered by the Mental Health Act, so I think they are very sensible proposals in terms of paragraphs (b) and (c).

The concerns I have expressed to the honourable member relate specifically to paragraph (a). When we drafted this—I mentioned this yesterday—there was some concern that section 14(6), (7) and (9) were inconsistent with the notion of isolating somebody for the purposes of having a COVID-positive status or being a close contact.

There are still concerns on my part in terms of the breadth of paragraph (a) in this amendment. What I am proposing to do—and again I acknowledge the work the Hon. Ms Game has done in terms of addressing this issue, one I think we might hear about from the government in terms of what is or is not being done at the moment—and what makes absolute sense to me, is that where you are restricting the liberties of a vulnerable person who needs assistance, then this warrants support. Certainly, where you are dealing with individuals who are covered by the Mental Health Act, this also warrants support.

Again, for the record, from the advice we have had in previous debates that this has been a consideration, I have no doubt that these things are being done. This seeks to enshrine this into the bill. I am not sure how I am going to do this but, given the concerns we have and based on the advice we have received in terms of paragraph (a), I seek your guidance, Chair, as to how to strike out paragraph (a) of the amendment to my amendment and support paragraphs (b) and (c).

The Hon. K.J. MAHER: I am not going to suggest a way forward but will just read out something for the benefit of the chamber while procedural guidance is being sought. The government appreciates the intent of the amendment from the Hon. Sarah Game in this regard; however, the advice we have received from SA Health public health officials is that significant work is already taking place in this regard, and I can give undertakings to the council in this regard and inform them of the work taking place.

I am advised by SA Health that people with mental health conditions, disability or who have other vulnerabilities who test positive to COVID-19 are supported to monitor any changes in their health condition and are provided prompt and accessible health advice and services, including in both residential disability settings and within private dwellings at home. People with mental health concerns are referred to community mental health services provided by local health networks, and there is also a direct mental health liaison in the COVID community team.

There is also a mental health COVID phone line that is operated under contract with the state government through Uniting Communities that provides support as well as referral to other mental health services. Self-care kits tailored to adults, children and babies—containing an oximeter, thermometer, Panadol, Hydralyte and written COVID-19 care information—are made available through the SA COVID community hub, also known as the SA Health high-risk CRCT (COVID response clinical team), including access to virtual monitoring kits.

All individuals who are diagnosed with COVID-19 receive a text message from SA Health COVID-19 operations. The CDCB (Communicable Disease Control Branch) or usual care providers can escalate to the SA Health high-risk CRCT team to support people with a disability, mental health condition or other vulnerability who are COVID-19 positive and ensure they receive help, advice and services by:

firstly, escalating care requests and GP referrals where a local GP is not engaging in care within adequate time frames. This may be through the National Coronavirus Helpline;

secondly, daily symptom checks through telephone calls;

thirdly, providing COVID-19 virtual monitoring equipment for patient use; and

fourthly, providing emotional support to onsite carers and staff managing COVID-19 patients and also facilitating onsite medication administration through community providers where required.

Where a person with a disability, mental health condition or other vulnerability presents at a local health service, such as an emergency department, their status is a relevant factor in their individual care assessment. This assists staff to determine the individual's needs and appropriate health services. Where there are concerns regarding decision-making in relation to a COVID-positive patient, health staff follow standard health protocols in line with clinical practice and legislative requirements to ensure that, where appropriate, other health practitioners, such as general practitioners or the person's next of kin, are notified. Where an individual tests positive, is unwell and seeks medical advice, or presents at a hospital, they may be referred for virtual monitoring or Hospital in the Home face-to-face in-home services provided by the local health network.

Depending on clinical need, the CRCT may call to the house or facility daily and the staff and/or patient are asked a series of questions related to the signs and symptoms of COVID-19, or whether there is anything abnormal in the client's or the patient's presentation—e.g. whether they are withdrawn, have a decrease or increase in appetite, or are exhibiting behaviours of concern which are not a usual pattern of behaviour.

If a client or patient is clinically unwell, the nurse asks the staff to contact the client's GP or one of the SA Health high-risk GPs in the GP assessment team and help facilitate a telehealth appointment. At this time, the GP may refer the client for in-home virtual monitoring or refer them to a COVID Care Centre for a face-to-face medical assessment or for oral or intravenous COVID treatment. The final referral pathway for acutely unwell clients is to refer to the SA Ambulance Service for assessment and transfer to hospital, based on severity of symptoms.

The CHAIR: Again, continue with your negotiations. I would just ask the council for its patience. We are dealing with what is obviously a very important bit of legislation. It is a bit of a moveable feast, so if we can all just be patient we will work our way through it in the most cooperative, reasonable way.

The Hon. S.G. WADE: I note the Hon. Sarah Game has moved amendment No. 1 in [Game-2]. I was just seeking your clarification: if particular members in the chamber were inclined to support some but not all of the paragraphs, if there was a proposal to amend the Game amendment with another amendment, could that issue be determined and then the rest of the clause considered as a whole?

The CHAIR: That is exactly how we intend to proceed. The Hon. Ms Bonaros is going to move an amendment to the amendment and speak to that, then we will have questions or conversation about that, and then we will put that. We will then put the Hon. Ms Game's amendment and then we will put the Hon. Ms Bonaros's original amendment, as amended or not.

The Hon. R.A. SIMMS: Just to clarify, I am still getting my head around the process. What the Hon. Ms Bonaros is moving is a combination of her amendment, incorporating the Hon. Ms Game's amendment; is that correct?

The CHAIR: The Hon. Ms Bonaros is going to move an amendment that effectively takes out her paragraph (a) and we will have a discussion around that as is necessary. I will put that question to see if that is acceptable. After I have done that, we will go to Ms Game and put her amendment—if it is amended or not—and then we will go back to Ms Bonaros to vote on her original amendment, as amended or not amended.

The Hon. C. BONAROS: I am sure that is as clear as mud to everybody, as it is to me. For the reasons I have outlined, I move:

That the Hon. Ms Game's amendment to my amendment be amended by striking out paragraph (a).

I think I have already said this when I have spoken: in principle, these amendments that the Hon. Ms Game has moved are ones that we raised when we considered this bill. The advice we had was that subsections (6), (7) and (9) are inconsistent with those provisions that we are putting in the bill.

I acknowledge the work that Ms Game has done in trying to find a resolution to probably the same concerns that were put to her as were put to us. This is the outcome of the work that Ms Game has done in recognising that subsections (6), (7) and (9), as they stand in the Public Health Act, are problematic in terms of close contacts and COVID-positive cases, because by the very nature of what we are dealing with we are restricting people's liberties.

Having said that, the advice that we have had is that we still have some concerns around the breadth of paragraph (a), notwithstanding that it has been altered from its original form, but I certainly do not have any concerns, notwithstanding what the government has said, because I acknowledge that we are doing this in any event in inserting those provisions into the bill when it comes to the remainder of that provision.

I think we have all at times stood up in this place and said, 'Well, if we're doing something then there's no problem with inserting it in the bill.' I acknowledge, though, that—probably from the response the government has given us—there may be some concern on the part of the government side that perhaps enshrining this in legislation makes it more difficult than dealing with it at a policy level. Notwithstanding that argument, I still think paragraphs (b) and (c) are worthy of support, but we do continue to have concerns around paragraph (a), and it is for that reason that I am seeking to strike that one out and maintain paragraphs (b) and (c).

The Hon. S.G. WADE: I want to reiterate that the Liberal Party supports the specific principles in section 14 as already in the Public Health Act. Let's remember what the government is trying to achieve here. They are telling us that the pandemic has progressed to the stage where we no longer need a major emergency. We no longer need the special arrangements that a major emergency requires. We are stepping away from the State Coordinator. We are going to rely on the public health officials, using the Public Health Act, supported by cabinet.

Yet, the government wants to move the powers of the Emergency Management Act into the Public Health Act, remove the specific principles that were put in section 14. Let's take this section in particular. The implication I had from the Hon. Connie Bonaros's comments was that she understood that if the original subsection (6) had been in place it would not be possible to restrict the liberty of a person. Let me read subsection (6) of the current act.

The Hon. C. Bonaros: I did not say that. I said it was problematic in that it was inconsistent. That is the advice that we have received in this place.

The Hon. S.G. WADE: Yes, okay—

The CHAIR: Order!

The Hon. S.G. WADE: Thanks for clarifying that. The advice that the Hon. Connie Bonaros received is that it would be inconsistent with isolation powers to have subsection (6). Subsection (6) has been in the South Australian Public Health Act since its inception. It was actually part of the government bill. It was not an opposition amendment. There were significant opposition amendments at that time, but subsection (6) is a government clause, a Labor government clause. What it says is:

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.

Sure, you can restrict the liberty of a person, you can isolate them, you can make them subject to very constrictive directions, but you cannot do so unless it is the only effective means to achieve the public health outcome.

We as a Liberal Party support the bill, support the act that the Labor Party put before this parliament in 2011, including subsections (6), (7), (8) and (9). Admittedly, subsections (7), (8) and (9) were the result of opposition amendments, but they were supported by Labor. Here we have a Labor government telling us we are going to come out of a major emergency, making a public health emergency look remarkably like a major emergency and constraining the freedoms of the individuals.

The principles of the Public Health Act are incredibly important. It is to the great credit of this house that amendments being moved, with a number of members putting them forward, have reasserted those principles for part 11A, and I commend the house for taking that stand. But speaking, if I may, on behalf of the Liberal Party, we are disappointed that we are stepping back from the protection of fundamental liberties.

The Hon. R.A. SIMMS: I want to indicate to the chamber the Greens' position in relation to this. We are supportive of the original amendments, as moved by the Hon. Connie Bonaros, but not the inclusion of the Hon. Sarah Game's amendments.

Just to be clear on why that is, I think what the Hon. Connie Bonaros is seeking to achieve here, and certainly what we have reinforced in our discussions with the government, is an inclusion of these very important principles from the Public Health Act, but also recognising that there is a balance that needs to be struck here with the unique scenario that we face in terms of this pandemic and the reality that there will need to be some restrictions placed on people's liberties in terms of people being quarantined at home and other requirements that they may need to comply with.

Certainly, the advice that we received was that the inclusion of those other principles, as has been advocated by the Hon. Ms Game, would be problematic and could potentially undermine that, and that is not something that we want to do. It is on that basis that we are supportive of the original amendment, but not the hybrid model that we are now discussing.

I do want to highlight some of the good additions, though, that have been made, should the original amendment pass. In doing so, I make reference to the amendment advanced by the Hon. Ms Game and, might I say, I think her desire to ensure that the needs of vulnerable people are being met and addressed is a commendable one and obviously something that we share in the Greens. I am persuaded, however, by the undertakings that the government have given in terms of saying this is something that they are already doing.

I also want to draw the chamber's attention to the inclusion of the sections from the Public Health Act that are being advocated by the Hon. Ms Bonaros that we are supportive of, and that is the principles set out in section 14, and I refer members to subsection (5). Some of the principles are:

(a) to have [one's] privacy respected and to have the benefit of patient confidentiality; and

(b) to be afforded appropriate care and treatment, and to have [one's] dignity respected, without...discrimination...

(c) ...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 [this] basis; and

(d) to be [able to] decide freely for [oneself] on an informed basis whether or not to undergo medical treatment...

(e) [that any] restrictions...[should be] proportionate to [the] risks [that are] presented...

(g) that [people's] needs [should be met in terms of access to]

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

(ii) a telephone or other appropriate method by which the person may communicate with others…

They also need to ensure that safe and hygienic standards are met and that they are treated in a way that is respectful to people's cultural and religious beliefs.

All of these things are going to be now included in this bill as a result of the amendment that has been advanced by the Hon. Corey—I apologise. Speaking of hybrids, I was about to merge Corey Bernardi with the Hon. Connie Bonaros. I am sorry about that, Ms Bonaros.

I think what is being advocated is a sensible solution here. It is a great improvement on what the government initially proposed. From the Greens' perspective, these are some really important safeguards for vulnerable people. They bring this into line with the Public Health Act while striking an important balance; that is, ensuring that some of the other restrictions that are imposed on individual liberties as we deal with the unique circumstances of this pandemic are still able to take effect in the act.

The Hon. C. BONAROS: I want to be very clear for the record and for the sake of the Hon. Mr Wade, and I would challenge anybody in this place now to disagree, that we have all had the benefit of the same advice when it comes to section 14 and the inclusion of subsections (6), (7) and (9) in this instance as it relates to COVID-19. We have made the point. Everybody is on the same page. We agree that the principles enshrined in section 14 of the Public Health Act are very good principles, and without those principles applying this would not be a good bill.

I am extremely pleased that the government has seen fit to accept the advice from the entire crossbench and indeed the opposition, who have argued the case as well, that there is a place for those principles when it comes to dealing with COVID-19 under the Public Health Act. The Hon. Mr Wade is correct: those are existing principles that have always existed under the Public Health Act. However, we have all received the same advice that when it comes to COVID-19, which we are now shifting into the Public Health Act, the provisions that we are putting into the Public Health Act, subsections (6), (7) and (9), are inconsistent. That is the advice we have all received.

As I have said, the Hon. Ms Game has taken a different approach when it comes to subsections (6), (7) and (9). The approach that she has taken, which I have acknowledged in terms of paragraphs (b) and (c), I still support. The concern remains, however, around paragraph (a) because of its breadth in terms of restricting the liberties of a person. As has just been highlighted by the Hon. Mr Simms, there are a number of provisions or specific principles outlined in section 14 that go to the heart of this amendment that the Hon. Ms Game is trying to pass in the chamber in any event.

There are already very sensible provisions in there about ensuring that someone has a roof over their head, that they have adequate food to eat, that they have access to medication, that they are not left alone. I am not repeating what is actually in there, but these are the basic living requirements of an individual. We are saying you cannot restrict someone's movements or have them isolate without giving them the basics they need. These are the proportionality principles that we have all been advocating for and that now will form part of this bill.

I am going to be clear again for the record: the advice that we have received in terms of subsections (6), (7) and (9)—and anybody who looked at this bill and went and sought advice would have had the same advice because our amendments effectively all mirrored each other's amendments—is that subsections (6), (7) and (9) are not compatible with COVID-19 insofar as it is going to come under the provisions of the Public Health Act. That is what we are dealing with.

There is no argument that subsections (6), (7) and (9) do not have a place in the Public Health Act, but we are inserting new provisions that deal specifically with COVID-19 cases into the Public Health Act, and the legal advice we have is that subsections (6), (7) and (9) are not compatible. That is the advice we have all had.

To suggest that we are ignoring principles that have applied under the Public Health Act and have served this community very well for a very long time is an absolute furphy. It is just not correct because we are not dealing with the remainder of the Public Health Act: we are dealing with COVID-19 cases that are being inserted into the Public Health Act, and they require a slightly different level of attention than the other provisions that exist under the Public Health Act.

The Hon. S.L. GAME: I want to thank the Hon. Robert Simms for his comments. I am a little bit confused. He has read out a whole list of entitlements that he supports for vulnerable people in these situations. While I respect that, I find it very confusing that he is adamant that he is not going to support paragraph (b): if the department is aware that a vulnerable person may need assistance, all reasonably practicable steps should be taken to ensure that the person's next of kin or a nominated person is informed.

That seems to contradict his stance and the views he advocates for people in those situations. He is also not going to support paragraph (c): if the department is aware that a person who is having their liberty restricted may require mental health services, we should actually consider whether they should be dealt with under the Mental Health Act 2009 or whether counselling should be provided to that person. It makes absolutely no sense to me.

I also want to make clear that I think we are hiding a lot behind this word 'problematic' and I do have a question for the Attorney with regard to that. I would like to understand in which way it is problematic that, if the department is aware that there is a vulnerable person, all reasonably practicable steps are taken to notify a next of kin, and in which way is it problematic that if the department is aware that someone may be vulnerable and need assistance or counselling provided or consideration under the Mental Health Act why the Attorney feels that is not achievable?

The CHAIR: The Hon. Ms Centofanti, can we hear the answer to that question before I come to you. Attorney, do you want to answer that question now?

The Hon. K.J. MAHER: I thank the Hon. Ms Game for her contribution. As I read out, that is what is usually done and what is strived to be done with informing vulnerable persons. My advice is if it is put in legislation and for whatever reason there are huge surges of cases and it is not done at one particular time it could affect the veracity of the directions in general.

The Hon. N.J. CENTOFANTI: I just had a question to the Attorney. If the government is not supporting the Hon. Ms Game's amendment, which it has indicated it is likely not to, is the government suggesting that we can lock people up who are COVID-positive if it is not at least reasonably necessary to ensure that the health of the public is not endangered or likely to be endangered, because that is what the Hon. Ms Game's amendment says, specifically under (2)(a):

directions restricting the liberty of a person, or a class of person, should not be imposed unless those directions are reasonably necessary to ensure that the health of the public is not endangered or likely to be endangered;

The Hon. K.J. MAHER: My advice is that, in the example of isolation, to allow isolation to be applied on a broad basis, to have the potential individual challenge would make that very problematic.

The Hon. S.G. WADE: On that point, Attorney, does this suggest an individual challenge? This talks about a direction overall and, if it is a general direction, what course of action would an individual have?

The Hon. K.J. MAHER: I thank the honourable member for his question. Based on the advice, it is to do with an individual case. For example, a broad direction in terms of the length of time to quarantine would necessarily capture individuals whose very specific circumstances might mean they would be infectious for less than that broad time, but a broad direction for quarantine is needed to capture everyone, even though there might be individuals whose time might be less than that, for example, under the quarantine. That is the advice I have as to why it being that broad is necessary.

The Hon. S.G. WADE: That is exactly why I imagine the Hon. Sarah Game has included the words 'to ensure that the health of the public is not endangered'. It is not about the individual health of that person. In the context of a public health response, individual freedoms will be constrained, but I believe the Hon. Sarah Game's amendment is well constructed in that regard.

I would like to go back to the conversation I am having with the Hon. Connie Bonaros. To the extent that my comments about subsection (6) were, in effect, reflecting an earlier vote of this house to exclude (6), (7) and (9), they may have been disorderly. Let me get back to the focus, which is paragraph (a) of the Hon. Sarah Game's amendment.

The Hon. Connie Bonaros' point, as I understand it, was that members of the house had been given advice that it is inconsistent with isolation to have (6), (7) and (9) in place. It is in that context, I understand, that the Hon. Ms Bonaros was suggesting that that was why the Hon. Ms Game provided amendments that accommodate that.

As I understand it, the advice the Hon. Sarah Game has received is that none of these modifications of the principles would be inconsistent with the application of the isolation; otherwise, I presume she would not have moved them. Therefore, putting aside my comments about subsection (6), which I appreciate the Hon. Ms Bonaros believes should be excluded—and the house agrees with her—

The Hon. C. Bonaros: It is (a).

The Hon. S.G. WADE: No, I meant (6) by the previous vote. By the previous vote the house made it clear that they do not support the Liberal Party position to leave subsection (6) applying. The Hon. Ms Game is suggesting a modification of (6), if I could put it that way, which she believes, on advice, is consistent with the isolation proposed under this act.

I take it that this is consistent with the provisions, and certainly from the Liberal Party's viewpoint we are not going to say that we are going to accept the restrictions on the liberties of a person, even if it is not reasonably necessary. We believe that is a basic expectation on public officers. If this house is going to strike out clauses like that, we are no longer defending the people's rights that we are elected to protect.

The Hon. C. BONAROS: Perhaps I could just respond to the comments of the Hon. Mr Wade. We have all acknowledged what we have tried to do here. We have advice that we have inconsistencies. The Hon. Ms Game has tried to address those inconsistencies. She has had advice that says this addresses the inconsistencies.

There is every possibility that it may be consistent, but the issue we have is that we do not know whether indeed it is going to be found to be consistent or inconsistent unless it is challenged and a court provides us with an interpretation that actually provides some grounds for whether it is consistent or inconsistent.

We have said we are still concerned because there is still uncertainty. We can all go and get our own separate advice provided outside this place. We are all entitled to do that, and we all do that. I have done that, the Hon. Ms Game has done that, and we all have the benefit of advice that we receive in here. We have all acknowledged the original advice that we have all received in here. That is the same. Everybody has received the same advice.

The Hon. Ms Game has drafted an amendment which, on the face of it, could be consistent—potentially could be—but we do not know. That is the bottom line. We do not know because it has not been challenged and it has not been subjected to an interpretation by a court, and it could very well be found to be inconsistent.

I suppose from a drafting perspective, we aim to draft a provision in line with the advice that we have received and, on the face of it, it could very well be that it is not inconsistent. But once it is challenged, if it is challenged, if we get to that point, we could find a very different response. We do not know at this stage how a court would interpret paragraph (a). I have already outlined the reasons why I am concerned about paragraph (a). I have done that throughout this debate.

The bottom line is, in response to the points the Hon. Mr Wade just made, despite the best efforts of trying to get something drafted which accommodates section 14(6), we simply do not know whether or not it is consistent or inconsistent, and only the courts who interpret this would provide an answer to that.

I have said for my part that I am not willing to put something into the bill that could be found to be inconsistent. I do not know the answer to that, other than the advice that I have sought from this place and from outside this place, but that is not a risk I am willing to take. Certainly, I do not see the same problems applying when it comes to the subsequent two provisions. That is SA-Best's position.

The Hon. R.A. SIMMS: Very briefly, just to deal specifically with the issue the Hon. Sarah Game has raised regarding the Mental Health Act in her proposed amendment, I guess the other concern the Greens have is that some of the provisions of the Mental Health Act are not necessarily appropriate for dealing with the scenario that Ms Game refers to.

The Mental Health Act refers to people being required to take medication or potentially being detained and so on, and so there is a slight contradiction there in terms of what Ms Game is, I think, seeking to achieve. That is where we think the provisions that exist already in the Public Health Act with respect to section 14 that the Hon. Ms Bonaros is seeking to include and which we are supportive of is a much better pathway.

I understand the arguments. I certainly understand the politics of this from the opposition's perspective, but we have all been provided with the same advice in terms of the difficult balancing act that we are trying to undertake here. The reality is that any approach we take here will require some implication or some impact on civil liberties because of the unique nature of COVID-19. I think the amendment the Hon. Ms Bonaros has put forward initially strikes the right balance.

The Hon. S.L. GAME: I just want to respond to the Hon. Robert Simms. Actually, I have a question. Could he clarify for me why he is not supporting paragraph (b) 'if the Department is aware that a person who is subject to directions restricting their liberty is a vulnerable person who may need assistance to understand or comply with the directions'? Why is he not supporting, if the department is aware, that all reasonably practicable steps are taken to ensure that the person's next of kin or a nominated person is informed?

The Hon. K.J. MAHER: It might be helpful, with the benefit of advice from Health, to provide an answer to that. It is very similar to an answer I previously gave and it is something that we strive to do but, in circumstances where there are thousands and thousands of cases and it is physically impossible to do it in every case at a particular time, we are concerned that the validity of directions could be in jeopardy. We completely understand the reason for and desirability of doing this, but we are concerned that legislating it this way could harm the validity of directions.

The Hon. S.L. GAME: I would like to thank the Attorney-General for the effort he went to in providing us with a list of steps that are being undertaken and that are desired to be undertaken; I appreciate that and find it quite respectful. However, I am still not really sure because you are using the example of thousands of cases, but it does state here, clearly, that (1) the department is to be aware and (2) that you are taking reasonably practicable steps. Whilst I do appreciate the effort you have gone to in addressing some of my concerns, I still do not find the answer really deals with why you are not supportive of paragraph (b).

The Hon. R.A. SIMMS: Without getting too bogged down here, there is a fundamental difference between the approach the Greens party takes to this matter and the approach the One Nation party takes to this matter. One Nation has been pretty clear that it has real concerns around the emergency declaration around the Public Health Act and the whole response to the pandemic. It has been on the public record on that, and there have been some interesting statements made regarding that in the media.

The Greens have a very different position. We come at this from the starting point of wanting to respect people's liberties, of course, but also wanting to ensure we have an appropriate framework in place to deal with this public health issue, recognising that there has been a significant public health emergency we have needed to deal with over the last few years. So we come at it from a fundamentally different philosophy. I do not want this to degenerate into just a Rob and Sarah Game game—

The CHAIR: The Hon. and the Hon.

The Hon. R.A. SIMMS: —but I want to make it clear that there are some distinctions in terms of our fundamental philosophies here.

The Hon. S.G. WADE: I appreciate that we are talking about an amendment of Ms Bonaros in relation to (a), but I would like to ask the Attorney a question that compares and contrasts. In my view, 2(a) may well lead to a direction being deemed to be invalid because it is contrary to the act, but my understanding of (b) and (c) is that they do not go to the validity of direction. They go to a duty on public officers.

The duty on public officers in (b) is that if they are aware a person is vulnerable they need to take all reasonable steps. In relation to (c), if they are aware that a person has mental health issues they need to consider the Mental Health Act. I cannot see how either of those bring into question a direction, and I cannot see why either of those should not be in this bill.

The Hon. K.J. MAHER: My advice is that the ability for these to be challenged could throw into doubt the validity of directions. That is the combination of the advice we have received.

The Hon. S.G. WADE: The Attorney has substantially highlighted how SA Health currently works to protect the rights and interests of people with mental health issues, and I commend SA Health for the work they do in that area. If we think that public health officers in SA Health are not willing to have a duty put on them to consider whether action should be taken under the Mental Health Act, consider whether a person with mental health issues might need assistance, consider whether a person with mental health issues might benefit from counselling, then I think we are setting a very low bar. In fact, we are asking—we are almost suggesting—that SA Health officers might want to lower their standards, because I know they would consider the Mental Health Act, they would consider assistance and they would accept counselling.

I believe the Hon. Sarah Game's amendment is expecting health officials to respect the health needs of the person in front of them, considering that the normal Public Health Act requirement reflected in section 93 is that you cannot take action under the Emergency Management Act or the Public Health Act if there is no cause or reasonable cause to take action under the Mental Health Act. So the normal expectation of the Public Health Act that this government endorsed in 2011 was that if a person's needs, including the public health needs, could be appropriately addressed under the Mental Health Act, then go through the Mental Health Act approach.

To me, that honours people's health issues, including their mental health issues. This approach, I believe, is actually discriminatory. It is basically saying that, even if you have mental health issues, we are not even going to expect that our officials will consider a Mental Health Act response or a mental health response. I think it is very disappointing that this modified version of the principles in the Public Health Act cannot be supported by this house.

The CHAIR: If there are no further contributions to this clause, I would like to put the Hon. Ms Bonaros's amendment to the amendment, but I would like the Hon. Ms Bonaros to be here. The question is that the amendment moved by the Hon. Ms Bonaros to leave out paragraph (a) from the amendment moved by the Hon. Ms Game to Ms Bonaros's amendment be agreed to.

The Hon. K.J. MAHER: Sorry, I think there is some confusion about the way in which it was put, sir.

The Hon. R.A. SIMMS: And the mover was out of the room.

The Hon. C. BONAROS: I apologise.

The CHAIR: This is the amendment of the Hon. Ms Bonaros to the amendment of the Hon. Ms Game to the amendment of the Hon. Ms Bonaros. As I clearly stated, it is that the amendment moved by the Hon. Ms Bonaros to leave out paragraph (a) from the amendment of the Hon. Ms Game to the amendment of the Hon. Ms Bonaros be agreed to. So this is about leaving out paragraph (a).

Members interjecting:

The CHAIR: Order!

The Hon. K.J. MAHER: If you are for the proposal, is it a yes?

The CHAIR: If you are prepared to take out paragraph (a) from the Hon. Ms Game's amendment, you will vote yes.

The Hon. S.G. WADE: And then we will have a subsequent opportunity to consider whether we want the balance of the Hon. Sarah Game's amendment?

The CHAIR: The next question I will put, after we have this amendment, is that the amendment moved by the Hon. Ms Game to the amendment by the Hon. Ms Bonaros—as amended if it is agreed to—be put. The question is that the amendment moved by the Hon. Ms Bonaros to leave out paragraph (a) from the amendment moved by the Hon. Ms Game to the Hon. Ms Bonaros's amendment be agreed to.

Ayes 12

Noes 7

Majority 5

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

Amendment to the amendment thus carried.

The committee divided on the Hon. S.L. Game's amendment, as amended, to the Hon. C. Bonaros's amendment:

Ayes 9

Noes 10

Majority 1

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

The Hon. S.L. Game's amendment to the amendment thus negatived; the Hon. C. Bonaros's amendment carried.

The CHAIR: The next amendment that we have is amendment No. 2 [Game-1]. Our advice is that the Hon. Ms Game may be unlikely to move this; is that correct?

The Hon. S.L. GAME: I have decided that I will no longer move amendment No. 2 [Game-1] due to the fact that I feel those concerns have been addressed by other amendments proposed.

The CHAIR: We now have two amendments at clause 3. They are not necessarily competing amendments. The first one we will be considering is amendment No. 3 [Game-1] followed by amendment No. 2 [Bonaros-2].

The Hon. S.L. GAME: I will not be moving amendment No. 3 [Game-1] due to those concerns already being addressed by other amendments made.

The Hon. C. BONAROS: I move:

Amendment No 2 [Bonaros–2]—

Page 3, after line 29 [clause 3, inserted section 90B]—After subsection (3) insert:

(4) The Minister must, before the end of the 7th day after a direction is issued under this section, cause a document or documents setting out the relevant health advice for the direction to be published on a website determined by the Minister.

(5) In this clause—

relevant health advice for a direction means advice provided by the Chief Public Health Officer or by other officers of the Department to any Ministers of the Crown in respect of the issuing of the direction.

This amendment seeks to ensure that we are provided with the relevant health advice for the reasons outlined in my second reading contribution and in some of the other contributions. In a nutshell, what we are saying is that the minister, before the end of the seventh day after a direction is issued, has to cause a document or documents setting out the relevant health advice for the direction to be published on a website determined by the minister. In this clause, 'relevant health advice' for a direction is defined as advice provided by the Chief Public Health Officer or by other officers of the department to any ministers of the Crown in respect of the issuing of the direction.

I am going to make a couple of points in relation to this amendment. Firstly, there is an amendment we are going to consider that is going to be moved by the Hon. Robert Simms that I think, as a matter of course, will have available to it this information anyway. It also, just for the record, deals with the issue of disallowances, which the Hon. Ms Game and I also had amendments to. We are going to have a functioning committee, an oversight committee, that is going to be able to request these things of the government, but in any event I think it is still prudent to have a provision in the bill that requires the government to provide the health advice that it receives when a direction is made.

There will be a bit of a process. In my mind, I can see that we are going to have a direction. We are going to then receive the health advice that directions are based on. There is going to be an oversight committee, hopefully, which actually scrutinises that process. But then the important part—and I cannot stress enough how important this is—is that we are going to have the ability to disallow directions or legislative instruments that do not pass the pub test. So the health advice will go a long way towards informing members of this parliament, and indeed the committee, whether or not we think a direction is appropriate or not.

When I spoke at the second reading stage, I outlined in detail that we are moving from a state of emergency to the executive making directions around close contacts. The executive is now going to be making directions—potentially, not necessarily—around close contacts and COVID-positive cases.

There may be a time when a direction is made that is queried and we will want to know what the foundation is for that direction. This will provide us with an understanding of the health advice that underpins that direction. The committee in its function will also have access to that same health advice and will be able to scrutinise it in its oversight role. Then this parliament, or on the recommendation of the committee or any member of this parliament, based on the advice that they have been receiving, will be able to come back here and move a disallowance motion if we deem that a direction has overstepped the mark.

Directions made by the executive are very different to directions made by the State Coordinator. The State Coordinator was operating under a different set of powers, the Emergency Management Act. It is a depoliticised process, if you like. We do not have control over those directions. I know that there are directions that people are not necessarily happy with that the State Coordinator has made to date, but they have been based on the best available advice made to him by the Chief Public Health Officer and others.

It is a very different kettle of fish when the executive is making those decisions, albeit only in relation to close contacts and COVID-positive cases, so it is absolutely necessary that this parliament has the ability to disallow those regulations. Health advice feeds into that process of informing us of the basis for the direction in the first place. We also have had concerns raised—and I am sure everyone is aware of the advice—of the lack of terminology or definition that has been provided already in the bill, particularly as it relates to close contacts. That has been a moving feast.

We have seen the definition of a close contact change consistently over the course of the pandemic. As we move to a new sense of normal—living with COVID—the executive will be able to effectively determine what a close contact is. We do not want that to be an undefined term without any advice underpinning it, so the health advice is critical. It is critical that this parliament has access to that. More importantly, it is critical that the public, the community of South Australia, understands the health advice on which these directions are made.

If any of those directions are deemed not to be appropriate, then we will have another mechanism through another amendment, which is going to be moved to this bill, which mirrors an amendment of the Hon. Ms Game, the Hon. Rob Simms and I—I am not sure if anyone else had it—which effectively allows us to disallow those regulations. But we need information provided to us as a parliament to be able to do those things.

To date, a lot of the information that has underpinned the directions we have considered have been based on health advice. We have been getting updates in the media from the Chief Public Health Officer about that health advice, but I think it is only appropriate that where we transition from a pandemic to the Public Health Act and the executive being responsible for that, then this parliament has the ability to access that advice and make informed decisions based on that advice about directions, but also that the wider community of South Australia has access to that advice and understands and appreciates why it is that a new direction is being made and what the advice is that has been given to the government and the executive in making that direction.

The Hon. K.J. MAHER: Very quickly, we support that and it does make sense if there are further amendments later to be considered about allowing an ability to disallow directions made that we will be supporting that later. It makes sense that people in the chamber can have a full view of whether or not to do that, so we will be supporting that and the amendment later.

The Hon. R.A. SIMMS: I rise on behalf of the Greens to support the amendment. This was a really critical amendment for us, that is, ensuring that there is appropriate oversight of the parliament and understanding of the health directives and the basis of those. So making this information available to the parliament so that it can also inform the work of the committee that I anticipate will be established later, I think, is a really important step and one that strengthens the bill.

The Hon. S.G. WADE: In relation to this amendment, I am interested as to why it limits help to health advice. The honourable member quite rightly makes the point that under the new process the decisions will go through the political process, which means the government will only act on the advice of Executive Council, and Executive Council in its processes gets advice from all over government. My experience of directions in the last 18 months is that health advice is not the only relevant advice. This might go to whether we need to strengthen the committee proposal under the subsequent amendment of the Hon. Robert Simms.

To my mind it would be good to have both the reasons and the advice, because the health advice might be one thing, the direction might nuance that through the Executive Council process before it is promulgated. I think there would be value in its being broader. I wonder whether a more appropriate place for more detail is in the proposed schedule a1 from the Hon. Robert Simms.

The Hon. C. BONAROS: I acknowledge the point that the Hon. Mr Wade has just made. When I had these discussions with stakeholders and we talked about where this bill would land, there were some minimum things we wanted to see in this bill. This was one of the issues that was raised with me as being absolutely critical, because so much of what we have done has been based on the health advice. From the public's perspective, they want some reassurance that there is indeed health advice underpinning these decisions, but certainly the advice I took when I drafted this related specifically to the request for health advice.

I do not have the benefit that the Hon. Stephen Wade, as former minister in this area, has of knowing what other considerations they have had. But I will say this: a number of us here served on the COVID-19 Response Committee, and we found it extraordinarily difficult to get the advice on which directions were being made. That is an important point that should be placed on the record. So when I had those discussions, one of my frustrations as a member of that committee—and for the Hon. Tammy Franks as chair of that committee—was that we were not being provided with that advice through the select committee process.

I do not envisage the same sorts of issues occurring with a statutory committee that is formed, which is what we will have and which will have much broader powers than our committee had in the past. That is the importance of having that committee enshrined in the bill: it gives it the breadth of power it needs to be able to request information from the government, the executive and whoever else it may be, in terms of its considerations and its role as a scrutiny and oversight committee.

If there are other bits of evidence that are being relied on, then they are things that will be pursued through the committee. I limited this to the health advice because that is the advice I had at the time when I met with stakeholders about what do we need in here and what is critical to make this bill functioning so that people understand when a rule, a direction, is made about why you have to isolate. I am not sure of an example that I can give under the new provisions of what the executive may say needs to be done in relation to, for instance, a close contact, but that will have health advice underpinning it somewhere.

I think all directions have predominantly been based on the health advice. That is certainly where a lot of the focus has been, but I also acknowledge that there is other advice that is going to be provided that may also inform those. I think that the committee process that is going to be established is going to effectively have that oversight, but again, for the record, it was stressed to me very strongly that the health advice is critical. People need to understand what that health advice is and why they are being directed to do something.

Amendment carried.

The CHAIR: Hon. Ms Bonaros, the next amendment we have is amendment No.4 [Bonaros-1], clause 3, page 3 after line 38 [clause 3, inserted section 90C].

The Hon. C. BONAROS: I will not be proceeding with that amendment.

The Hon. S.G. WADE: This might be a question better asked at a later stage, but is the timely consideration of exemptions something the committee could look at?

The Hon. C. BONAROS: Thank you to the Hon. Mr Wade. I think we have established that in some cases there have been delays in the consideration of exemptions. This was really to make a point that they should be considered expeditiously. The government and indeed the opposition have made the point that, when we have a huge outbreak, there are time constraints. The point that I was trying to make is that five months is not reasonable for allowing someone to wait for a response to an exemption, but this is a process again that will fall under the ambit of the COVID oversight committee, which would be able to look at the length of time that it is taking to respond to applications for exemptions and the timeliness or otherwise of those applications.

Can I say just for the record also that I have raised this issue with the minister personally within this debate and outside of this debate, and I have undertakings from the government in terms of the way that we deal with those and that they should be done so expeditiously.

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

Amendment No 2 [Lensink–1]—

Page 4, line 6 [clause 3, inserted section 90C(3), penalty provision, (a)]—Delete ‘$75,000’ and substitute:

$50,000

In terms of enforcement, the fines and imprisonment are the same as currently apply for the Emergency Management Act. The Liberal Party proposes that the level of penalties be reduced for the following reasons: firstly, the levels of penalty in South Australia are relatively high compared with other Australian jurisdictions; secondly, the penalties actually imposed throughout the pandemic have been well below the maximum; thirdly, heavy-handed enforcement, real or perceived, undermines public support for public health measures.

We propose that the penalty provisions in the bill should not include imprisonment and that the maximum fine be reduced by about one-third to $50,000 for a body corporate and $15,000 for a natural person. It is not proposed to adjust the $5,000 expiation fee for body corporate or $1,000 for a natural person. I spoke to this in my second reading, and I think our position on this is well known. I just alert honourable members that we will be seeking a division on this particular provision.

The Hon. K.J. MAHER: We have canvassed this before, the honourable member is right. We will be opposing this amendment. The penalties proposed in this bill are the penalties that the government has seen fit to have in place under the Emergency Management Act for the last two years. We think they are reasonable, so will be opposing the amendment.

The Hon. S.G. WADE: To address the Attorney-General's logic, we have been under the Emergency Management Act for the last two and a bit years. The government is proposing to come out from the Emergency Management Act. Because we are leaving the Emergency Management Act, to say we should take with us the penalties that were under it makes no sense to me.

I thank the Attorney for providing responses to opposition questions in relation to fines and imprisonment. Consistent with my past practice, if the Chair is agreeable I propose to read them onto the record. I think it is appropriate that all members have access to the information, not just those who asked for it, and also so that it is available for future reference.

The CHAIR: We have reasonably free-ranging discussion on this bill, and we have needed to, so please.

The Hon. S.G. WADE: It does go to some of the questions asked by the Hon. Tammy Franks yesterday, as well. I will put the questions and show the answers. The first question was:

Since March 2020 how many expiation notices have been issued per month under the Emergency Management Act 2004 (SA) in respect of the outbreak of the human disease named COVID-19 in South Australia? Since March 2020 how many people have been cautioned per month under the Emergency Management Act 2004 (SA) in respect of the outbreak of the human disease named COVID-19 within South Australia?

The answer given is:

There were 2,348 expiation notices across the 25 months from March 2020 to March 2022, an average of 94 per month. In the most recent month of data of March 2022 there were 29 expiations. There were 4,782 caution-only notices across the 25 months from March 2020 to March 2022, an average of 191 per month. In the most recent month of data of March 2022 there were 81 caution-only notices.

The next question was:

Since March 2020 how many expiation notices have been paid per month under the Emergency Management Act 2004 (SA) in respect of the outbreak of the human disease named COVID-19 within South Australia? Since March 2020 how many expiation notices issued under the Emergency Management Act 2004 (SA) in respect of the outbreak of the human disease named COVID-19 within South Australia remain unpaid?

The answer given is:

This is dynamic data and as a result the status of an expiation notice may change. From 27 March 2020 to 31 March 2022 a total of 2,348 notices were issued, of which 307 were expiated (paid in full). This number excludes cautions which do not have an attached fee. 1,205 are with the Fines Enforcement Recovery Unit, 451 are under a payment agreement, 188 have been withdrawn, and 162 are withdrawn for prosecution.

The next question was:

Since March 2020 how many arrests have been made per month under the Emergency Management Act 2004 (SA) in respect of the outbreak of the human disease named COVID-19 within South Australia?

The answer given is:

Since March 2020 there have been a total of 279 arrests made under the Emergency Management Act 2004 (SA). There were only two arrests made in April 2022 and no arrests made in May 2022.

The next question was:

Since March 2020 how many people have been reported per month under the Emergency Management Act 2004 (SA) in respect of the human disease named COVID-19 within South Australia?

The answer given is:

SAPOL is unable to ascertain this information in the time frames provided. We will be happy to facilitate this request with further time provided if so required.

The next question was:

Since March 2020 how many charges have been laid per month under the Emergency Management Act 2004 (SA) in respect of the outbreak of the human disease named COVID-19 within South Australia?

The answer given is:

Since March 2020 a total of 729 charges have been laid for offences under the Emergency Management Act 2004.

The next question was:

Since March 2020 how many prosecutions have been initiated per month for offences under the Emergency Management Act 2004 (SA) in respect of the outbreak of the human disease named COVID-19 within South Australia?

The answer given is:

Since March 2020, on average 27 prosecutions have been initiated per month for offences under the Emergency Management Act 2004 (729 charges divided by 27 months).

The next question was:

Since March 2020 how many prosecutions have been finalised per month for offences under the Emergency Management Act 2004 (SA) in respect of the outbreak of the human disease named COVID-19 within South Australia?

The answer given is:

527 prosecutions have been finalised since March 2020 for offences under the Emergency Management Act 2004. The data for each month is unable to be broken down into a month-by-month basis.

The next question was:

Since March 2020, of the prosecutions finalised for offences under the Emergency Management Act 2004 (SA) in respect of the outbreak of the human disease named COVID-19 within South Australia, how many penalties were handed down by the Court?

The answer given is:

Of the 527 prosecutions that have been finalised, 179 resulted in a penalty being handed down by the court. 86 of these involved a sentencing for some period of imprisonment. Anecdotally SAPOL advise that most terms of imprisonment were time served on remand.

The next question was:

For each class of offence, how many fines were imposed, what was the range of fines imposed (maximum and minimum) and the average fine imposed?

The answer given is:

28 fines were imposed. SAPOL are unable to ascertain the range of fine and the average fine at this time.

The next question was:

For each class of offence, how many terms of imprisonment were imposed, what was the range of terms of imprisonment imposed (maximum and minimum) and the average term of imprisonment?

The answer given is:

There were 86 terms of imprisonment imposed. We are unable to provide data ascertaining the total range of imprisonment imposed or the average term of imprisonment imposed. Anecdotally SAPOL advise that most terms of imprisonment were time served on remand.

The next question was:

Since March 2020, of the prosecutions finalised for offences under the Emergency Management Act 2004 (SA) in respect of the outbreak of the human disease named COVID-19 within South Australia, how many have been dealt with without conviction?

The answer given is:

Of prosecutions finalised, 7 prosecutions have been dealt with without conviction.

The next question was:

Since March 2020, of the prosecutions finalised for offences under the Emergency Management Act 2004 (SA) in respect of the outbreak of the human disease named COVID-19 within South Australia, how many have had a conviction recorded?

The answer given is:

Of prosecutions finalised, 179 convictions were recorded.

I thank the government for those answers.

The Hon. K.J. MAHER: Just to finalise our views, as a government, on the fines: we think the fines are appropriate. We do not agree with lowering the fines. One of the cases that garnered the most public attention was the individual at Loverboy nightclub, the nightclub which said that breach cost them $60,000. The individual was fined $600 even though the maximum penalty was $20,000. The Liberal amendments propose that that come down to $15,000. We think that sends the wrong signal. Of course, courts impose fines based on a range, up to the maximum. What the Liberal opposition's amendments do is send a signal to the court that in that case you should be fined even less. We do not agree with that.

For the benefit of the chamber, these are exceptionally important issues we are dealing with: a global pandemic, issues to do with people's liberty. We do not in any way want to curtail this debate. We think it is important that everyone can speak as fully as they can, but we are keen to get this legislation finalised. With that in mind, with making sure everyone can speak as freely and for as long as they want, it will be our intention, should it be needed, to conclude this after private members' business today. Although there is a distinct preference for coming back in the morning, I just foreshadow it may be the intention that we come back after dinner tonight to make sure we finish this very important bill in a way that does not curtail anyone's ability to speak as much as they need to.

The Hon. R.A. SIMMS: I want to put on the record that the Greens understand the concerns that the opposition have expressed regarding penalties. It is an issue that we have been concerned about. In discussions with the government, we understand that in practice these are not being applied—or, indeed, certainly not at the high end. The penalties that have been put in place here are consistent with the Public Health Act. It is true that in South Australia we have higher penalties than some other jurisdictions.

I also want to make the point that this is a bit of a red herring, because, certainly in discussions that we have had with stakeholders, the key issues that they have raised with us have not been in relation to the penalties. They have been in relation to the lack of parliamentary oversight, accountability and transparency in the original bill that the government put forward, but through collaboration with the crossbench we in the Greens have been able to address those concerns, so in that context we are less concerned about this issue with the penalties.

I also want to draw members' attention to the amendment that I will be moving later on today regarding the committee. In that, it makes it very clear that a relevant COVID-19 direction that imposes taxes, fees, fines, imprisonments or other penalties can be looked at by the committee. If new directions are put in place by the government and those have implications for penalties, that is something that this new oversight committee can look at and certainly make recommendations for disallowance. With that in mind, we will not be supporting the opposition's position on this.

The Hon. C. BONAROS: With respect to the opposition, I think they have totally missed the mark in terms of the importance of the issues that we have been considering in this debate. There is a letter from the Law Society addressed to the Hon. Ashton Hurn MP. It sets out the Law Society's key considerations in this bill. The topics are lack of safeguards to protect individual freedoms, definition of close contact and scope of directions, transitional provisions, oversight and disallowance of directions.

The advice we followed through with with those same stakeholders is: what are your key concerns around this bill? The response has been safeguards, safeguards, safeguards, accountability, transparency, ensuring oversight by the parliament. I asked the question directly: are we concerned about penalties? It did not even rate a mention in the discussions that I have had with stakeholders.

The reasons it has not rated a mention are these: (a) the Public Health Act already has a range of penalties in there that are significantly higher than what we are considering in this bill and they are there for very good reason; (b) the courts have already set a precedent in terms of the sorts of penalties that are being imposed on individuals, and they are nowhere near the range that we have contemplated under these changes; and (c) we are going to have the function of the oversight committee; I have talked again about the importance of that in terms of the role that it will play.

I think we also need to acknowledge the reason there are penalties in the Public Health Act. We have seen maybe one or two cases of this in South Australia. In the main, all South Australians have absolutely done the right thing when it comes to complying with directions and rules around COVID-19, but the Public Health Act does have a broad range of penalties that apply under it for very good reason, because there is always every chance that somebody—an idiot—is going to go out and wilfully do something, recklessly and indifferently ignore the rules, flout the rules and do something terrible that could cause chaos in terms of the impact that it has on the broader community.

You will struggle to find a bill that we have passed in this place that does not have a range of penalties that includes the sorts of penalties that we are considering here, because we are always considering, in all the bills that we pass, that there may be a time when someone does do something that is completely and utterly stupid and reckless, that ignores the protection of the rest of the community. That is why we set penalties at the higher end, but the precedent to date has shown that there has not been a case in South Australia where the courts have deemed something so terrible that we are going to impose penalties at the higher end of the scale.

I am going to come back to the main point, the point that has been driven into us on the crossbench in terms of getting this bill through: safeguards. That is what is being sought, that is what we have sought to deliver. We want to ensure that parliament has oversight. We want to ensure that there is a disallowance mechanism for any new directions. We want to ensure that there are appeal rights and that there is a committee that has an oversight function.

They are the things that stakeholders that have looked at this have been concentrating on. Nobody has raised the issue of penalties because they pale into insignificance compared to the critical aspects of this bill, which we have managed, so far, to have incorporated into the bill.

The Hon. J.M.A. LENSINK: I wish to make a few remarks in response to some of the comments being made about this particular provision. I will not go through the three points that I made when I introduced this amendment, but I think it is worth pointing out that this bill and the government's rhetoric very much is about moving out of the pandemic and the fulfilment of an election pledge.

I think, to a degree, if members choose not to support these amendments, they are letting the government have their cake and eat it, too, because on the one hand the government is saying, 'We are easing the restrictions. Isn't that great? Aren't we great? Look at what we are doing,' but at the same time they are not prepared to give South Australians credit for, in the majority of cases, being very compliant during the pandemic. All credit for that goes to all South Australian for how they have conducted themselves throughout this pandemic.

We have seen few numbers. I thank the Hon. Stephen Wade and I thank the minister's office for providing those details. South Australians have been very compliant and if we are moving into this new phase, then I think South Australians can quite rightly ask this parliament why some of these heavy-handed penalties remain, and I think they certainly have been of that view.

In relation to stakeholders, yes, I respect the views of all sorts of stakeholders that express opinions, but they are not the sole arbiters of the judgements that we as individual lawmakers should use in this place. We have our own judgement, we have our own supporters who will contact us about this. With all due respect, it is not just about what the Law Society or SACOSS or any of those great organisations have to say because sometimes they do get these things wrong.

We are all, as individual lawmakers, sent here to this place to make our own judgements and we believe, as a party, very strongly, that these provisions ought to be reduced in line with the government's rhetoric that we are moving out of a pandemic, we are moving into the next phase. Well, let's test that theory.

The Hon. C. BONAROS: I have a question for the mover: does the mover acknowledge that the penalties that are actually being proposed are indeed in line with and significantly less than a lot of the other penalties that already apply under the Public Health Act?

The Hon. J.M.A. LENSINK: These particular ones that we chose we reduced by approximately a third of what was under the previous provisions.

The Hon. C. BONAROS: Sorry, they were provisions that applied under the emergency directions. We are now moving into the Public Health Act. Do we acknowledge that the Public Health Act has a range of penalties that apply to other offences in that act that are significantly higher than these provisions, including penalties of up to a million dollars for some offending?

The Hon. S.G. WADE: If I may comment on behalf of the honourable shadow minister, my understanding is the Public Health Act does have general duties which have both a serious risk and a material risk penalty. But let's go back to the principles that the honourable member quite rightly ensured applied to the COVID response. One of those was the proportionate principle: that the fines and penalties available need to be proportionate. We believe that this amendment reflects that. It reflects the fact that, in terms of the Australian jurisdictions and their response to COVID, in my understanding, there are three or four jurisdictions that have no imprisonment provision at all.

My understanding is that New South Wales, one of the largest jurisdictions, has a maximum imprisonment of six months. My understanding is that the next lowest imprisonment rate compared with South Australia is a year, in Western Australia. South Australia is the stand-out. For some reason, even though we are moving out of a major emergency and moving into a public health emergency, the South Australian government's position is that not only do we need imprisonment but we need imprisonment penalties at twice the rate of other jurisdictions.

The committee divided on the amendment:

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.

Amendment thus negatived.

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

Amendment No 3 [Lensink–1]—

Page 4, lines 7 and 8 [clause 3, inserted section 90C(3), penalty provision, (b)]—Delete ‘$20,000 or imprisonment for 2 years’ and substitute ‘$15,000’

Sometimes it is worth fighting the good fight knowing you are going to lose, so I move this amendment standing in my name for similar reasons.

The Hon. K.J. MAHER: The government will be opposing for similar reasons we opposed last time.

Amendment negatived.

Members interjecting:

The CHAIR: Order!

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

Amendment No 4 [Lensink–1]—

Page 4, line 33 to page 5, line 3 [clause 3, inserted section 90D(1) and (2)]—Delete the heading to section 90D and subsections (1) and (2) and substitute:

90D—Expiry

(1) This Part (and all directions under this Part that have not expired in accordance with a notice under subsection (2)) will expire on 24 September 2022.

(2) The Governor may, by notice in the Gazette, fix a day or days before 24 September 2022 on which a direction under section 90B, or specified provisions of such a direction, will expire.

The government proposes that the expiry of the directions be effected by gazettals by the minister. The government claims that this reflects the precedent of the Attorney-General being able to expire elements of the COVID-19 Emergency Response Act 2020. The Liberal Party does not consider that this is a robust precedent. The COVID response act provisions were primarily related to non-health aspects of the COVID response. Public health directions have always been promulgated and expired by the State Coordinator.

Consistent with the revised governance arrangements to make new directions, the Liberal Party proposes that the bill be amended to provide for cabinet to recommend to the Governor when directions should expire. If the direction has not otherwise expired by 24 September, the amendment would mean that the direction would then expire.

The Hon. K.J. MAHER: I rise to indicate the government will not be supporting this amendment that, as the honourable member has outlined, replaces the six-month operation of the bill with an earlier date. The government has concerns about this proposed four-month time frame.

The six-month operation is based on advice from the Chief Public Health Officer that it is important to maintain coverage over the winter months in South Australia when we expect higher rates of respiratory infections, including COVID. In terms of high-risk settings and requirements for masks and COVID vaccinations, winter and spring is a time of greatest concern, I am advised, in these settings. It also accounts for the busy winter period, meaning health professionals can focus their efforts on managing the impacts during this time instead of preparing for legislative extensions.

The Hon. R.A. SIMMS: I rise to indicate that the Greens will not be supporting this amendment, and I will not be moving my subsequent amendment in a similar vein dealing with a shorter time frame. The reason for that is when we first looked at this bill, we did lodge an amendment to bring forward the end date for this legislative framework but once we were able to negotiate this oversight committee, which would provide parliamentary scrutiny and would provide the opportunity for disallowance, then we were much more comfortable with giving the government six months because there will be safeguards in place.

On that basis, and the fact that gives time to get us through what is shaping up to be a significant flu period, we will not be supporting the opposition's amendment nor will we be proceeding with our amendment to bring the cessation date forward.

The Hon. K.J. MAHER: Just to say for clarity, I am advised that the Chief Public Health Officer has informed the Liberal opposition of the preference for six months over four months.

The Hon. R.P. Wortley interjecting:

The CHAIR: Order! We have not been missing you at all in here.

The Hon. C. BONAROS: I rise to indicate that SA-Best will not be supporting the amendment and we will not be moving our amendment on the basis of very similar reasons to those outlined by the Hon. Robert Simms. This was the amendment that we first drafted because of the concerns we had around the provisions in the bill with the lack of safeguards, the lack of an oversight committee, the lack of the ability to disallow regulations and the lack of any appeal rights. Those issues are being addressed.

As we can see through this debate, they are being inserted into the bill. Those safeguards that we have been seeking—and we were not sure whether or not we were going to see them—are now being inserted into the bill. The last thing we wanted was to pass a bill without any safeguards for a period longer than three months, so given that those safeguards (and I am really pleased that those safeguards are finding their way into this bill) are now finding their way into the bill, then it is reasonable that we have a six-month time frame. Again, that was really a measure to ensure that we do not have a bill without any safeguards that gave that extraordinary power in operation for such a long period, but we have and are addressing those issues through this debate.

Amendment negatived.

Progress reported; committee to sit again.

[Sitting suspended from 13:01 to 14:15]

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