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Legislative Council - Fifty-Fifth Parliament, First Session (55-1)
2022-05-18 Daily Xml
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South Australian Public Health (COVID-19) Amendment Bill

Committee Stage

In committee (resumed on motion).

Clause 3.

The CHAIR: The next amendment we have is the amendment in the name of the Hon. Ms Lensink, amendment No. 5 [Lensink-1], clause 3, page 5, after line 8.

The Hon. S.G. WADE: The Hon. Michelle Lensink and I share similar concerns about making sure that the public is provided with appropriate advice. It continues the discussion we had earlier today about the Hon. Connie Bonaros's amendment No. 2, which was about health advice. I did raise the issue that advice could be broader than health. I also make the point that I think it would be valuable to have reasons, not just the health advice that went to the government but the government to say, 'In the context of the advice we have received, health and otherwise, we have come to the following conclusion, and that's why we have done this direction.'

The Liberal opposition is happy not to proceed with this amendment, but in that context we would seek some undertakings from the government. I think it would be fair to say that my reading of the committee section is that it is not clear about what information goes to the committee. So in the context of the already stated intention of the Legislative Council that information be made public through the committee, I would seek an assurance from the government that, in relation to any new directions under section 90B, the expiry directions under 90D and the continuation of directions under schedule 1, clause 2, the committee that is likely to be established by this council later this evening be provided with all relevant advice—in other words, health or other advice—and a statement of the reasons for the directions.

The Hon. K.J. MAHER: I just want to check that we are clear what the question is. Is your question: will the government give an undertaking now that any sort of advice whatsoever that the committee that might be set up asks for will be provided?

The Hon. S.G. WADE: No.

The Hon. K.J. MAHER: Sorry, I misunderstood.

The Hon. S.G. WADE: I was thinking more in terms of when a direction is being made, a new direction under 90B, the expiry directions under 90D and the continuation of directions under schedule 1, clause 2. The Hon. Connie Bonaros has required the government to provide health advice, and what I would be seeking is an undertaking that the government would not only give health advice in relation to any of those but also any other relevant advice, for example, the police say we do not have the resources to do compliance activity in that regard.

It might not be health advice that is determinative on a direction; it might be other advice. In other words, that relevant advice be given to the committee, together with the reasons. That is then in the hands of the committee to consider. They may seek further information, they may recommend a disallowance.

I presume that the committee actually has rights under the parliament to call all records and documents, but I am not suggesting that; they will do that if they want to anyway. I am just, if you like, wanting to expand the anticipated range of material that is going to the committee, not just health advice but any other relevant advice, and also statement of reasons. It is one thing for the government to say, 'The CDCB has given us this advice on epidemiology,' but the government might say, 'With this advice in hand, we have decided to make this decision.'

The Hon. K.J. MAHER: I thank the honourable member for his question. It is not something that has been considered in terms of what sort of advice there might be. The former minister would be more aware than I am of the range of advice that goes into making these decisions, but presumably there will be some that could have consequences in disclosing entirely and in full. That might be police and other sorts of advice.

What I think I can reasonably say is I would be confident the government would be as helpful as they could to the committee. I think the honourable member is right that this committee, which I assume will have the powers of any other committee that I have sat on, can require and if need be send for, which is effectively subpoenaing, documents and other things that the committee would desire.

The Hon. S.G. WADE: It is an interesting point. I suppose I am anticipating the establishment of the committee because there seems to be a strong consensus for it. It may well be that there is almost like a standing order: the committee in consultation with the government says, 'What will we need to properly consider the directions? Let's have a standing understanding that this is the form in which the'—I suppose not dissimilar to what the Legislative Review Committee does. I understand they have a pro forma for consideration of regulations. In the understanding that there is goodwill between the committee and the government that a useful range of information is provided, not just, with all due respect, what might be relatively limited health advice.

The Hon. K.J. MAHER: I think it would be in any government's interests to do that because the powers of committees are far ranging. I think that a pro forma as 'these are the types of advice' and if there are any more the committee can do that. Otherwise, in my experience, committees will do as they please and ask for that.

While I am on my feet, for the sake of the chamber and as we go through this, I think there have been discussions during the course of the afternoon and we have obviously adjourned a number of pieces of private members' business until tomorrow and the intention is we will do government business tomorrow and private members' business after that.

I think most of us think we can probably finish this at 6.30pm tonight and be finished this tonight. If we do that, just to foreshadow, it would be my intention, given that there is one bill plus the Address in Reply tomorrow, not to sit tomorrow morning should we finish this, as I think most people think is reasonably possible at 6.30pm tonight.

The CHAIR: The Hon. Ms Lensink, with all of that, I take it we are no longer proceeding with that amendment?

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

The CHAIR: Now we have a number of competing amendments at 90F. We are going to have you all move these amendments, if members still intend to. The first one is from the Hon. Ms Bonaros, but we also have the Hon. Ms Game and the Hon. Ms Lensink.

The Hon. C. BONAROS: I move:

Amendment No 1 [Bonaros–3]—

Page 5, after line 14—Insert:

90F—Appeal rights

(1) If a person is subject to a direction under this Part that the person must isolate or quarantine at a place other than the person's place of residence or another location chosen by the person, the person may apply to the Magistrates Court for a review of the direction.

(2) Subsection (1) does not apply in relation to a direction continued in force pursuant to Schedule 1 clause 2 of the South Australian Public Health (COVID-19) Amendment Act 2022.

(3) An application under subsection (1) may be instituted at any time during the currency of the direction (and, subject to subsection (4), more than 1 application may be made while a direction is in force).

(4) If a second or subsequent application is made with respect to the same direction, the Magistrates Court must first consider whether there has been a significant change in the material circumstances of the case and should, unless the Magistrates Court in its discretion determines otherwise, decline to proceed with the application (if it appears that the proceedings would simply result in a rehearing of the matter without such a change in circumstances).

(5) The following provisions will apply in connection with an application under subsection (1):

(a) the making of an application does not suspend the operation of a direction to which the application relates (and the Magistrates Court must not suspend or stay the operation of the direction pending the outcome of the proceedings);

(b) the Magistrates Court must consider whether 2 or more applications by separate individuals may be joined or heard together taking into account:

(i) the extent to which it is impractical or unreasonable for individual applications to be heard separately in view of the number of applications before the court; and

(ii) the extent to which there are questions of fact or law that are sufficiently similar or common across a series of applications; and

(iii) the extent to which the directions across a series of applications are the same or similar; and

(iv) such other matters as the court thinks fit in order to best manage the applications in the circumstances;

(c) the Chief Magistrate may make such orders as the Chief Magistrate thinks fit (either in a specific case, in a specific class of cases, or generally with respect to applications under subsection (1)) to assist in dealing with the management and hearing of applications under subsection (1) (and any such order will have effect according to its terms).

(6) Subject to complying with subsection (4), the Magistrates Court may, on hearing an application under subsection (1)—

(a) confirm, vary or revoke a direction;

(b) remit the subject matter to the person who gave a direction for further consideration;

(c) dismiss the matter;

(d) make any consequential or ancillary order or direction, or impose any conditions, that it considers appropriate.

(7) The Magistrates Court may only revoke a direction under subsection (6) if satisfied that the direction is no longer reasonably necessary in the interests of public health.

(8) The Magistrates Court is to hear and determine an application under subsection (1) as soon as is reasonably practicable.

(9) A party to proceedings on an application under subsection (1) may appeal against a decision of the Magistrates Court under subsection (6).

(10) An appeal under subsection (9) will be to the District Court.

(11) The following provisions will apply in connection with an appeal under subsection (9):

(a) the making of the appeal does not suspend the operation of a direction that has been confirmed by the Magistrates Court and the District Court may, as it thinks fit, make any other order with respect to the operation of any other direction that has been varied or revoked by the Magistrates Court (including, if the District Court thinks fit, to reinstate or vary an original direction on an interim basis pending the outcome of the appeal);

(b) the District Court must consider whether 2 or more appeals by separate individuals may be joined or heard together taking into account:

(i) the extent to which it is impracticable or unreasonable for individual appeals to be heard separately in view of the number of appeals before the court; and

(ii) the extent to which there are common questions or issues across a series of appeals; and

(iii) such other matters as the court thinks fit in order to best manage the appeals in the circumstances;

(c) the Chief Judge may make such orders as the Chief Judge thinks fit to assist in dealing with the management and hearing of appeals under subsection (9) (and any such order will have effect according to its terms).

(12) The District Court may, on an appeal under subsection (9)—

(a) confirm or vary the decision of the Magistrates Court, or substitute its own decision;

(b) make any consequential or ancillary order or direction that it considers appropriate.

(13) The District Court is to hear and determine an appeal under subsection (9) as soon as is reasonably practicable.

(14) An appeal under subsection (9) will be heard in the Administrative and Disciplinary Division of the District Court (but will not be subject to the application of Subdivision 2 of Part 6 Division 2 of the District Court Act 1991).

(15) A person subject to a direction who is a party to proceedings before a court under this section is not entitled to attend those proceedings but is entitled to be represented at any hearing by a person (who need not be a legal practitioner) nominated by them and the court must, if reasonably practicable, allow the person who is subject to the direction to participate in the proceedings by the use of an audio visual link or an audio link.

(16) A court must, in dealing with proceedings under this section, take into account the need to ensure that its proceedings do not unduly hamper the work of public officials in dealing with the COVID-19 pandemic.

You are quite right, Chair, there are a number of competing amendments, if you like, that deal with the same issue of appeal rights. The amendment that I have had drafted is more limited in scope in that, for want of a better term, it applies to people who are detained. I have since had advice that 'detained' is probably not the correct terminology to use. It is people who are held at a place other than their own residence or another location chosen by the person.

What this amendment seeks to do is ensure that there are appeal rights for the sorts of scenarios that we saw during COVID. Again, this is based on the feedback that we had from stakeholders in relation to vulnerable persons who ought to have appeal rights. I am thinking specifically about people who are not asked to isolate at home or quarantine at home because, by the very definition of asking them to do that, if it were everybody who was asked to isolate at home because they had a COVID-positive result or were a close contact, then we would have our courts full of people who are appealing or challenging those directions.

This is aimed at vulnerable members of the community and also people who are in detention settings. It may be a child in child protection. I think the Hon. Tammy Franks raised the issue in one of the debates earlier of some Indigenous children being, for want of a better term, detained. We had some concerns around where they were being placed, how they were being placed and what was happening to them.

The other scenario that has been raised with us is somebody who is in an aged-care facility. They are effectively being held somewhere because they have a COVID-positive result or are even a close contact. Whatever the case may be, they are not being held where they normally would reside, or they are not being held in the same sorts of scenarios where they would normally live. We want to make sure that they have some protections.

If we think more broadly afield, for somebody who is held in a mental health facility, somebody who is held in juvenile detention, somebody who is held in the Remand Centre or somebody who is held in detention in a hospital, we want to ensure that there are appeal rights that apply to them in line with what applies in other areas of the Public Health Act to ensure that they do have the ability, for whatever reason, to appeal those decisions.

There could be other people who come under specific detention. I am going to use the word 'detention' because it is easy. They are told to isolate somewhere: at a border, at an airport, in a hospital, wherever the case may be. There may be very good reasons for them wanting to challenge being held at a particular place other than their home or where they would normally reside. That is what this amendment seeks to do: to insert appeal rights for those individuals.

When I received advice on this bill, that was the cohort of individuals that we were particularly concerned about because their movements could be further restricted. We are again dealing with a cohort of individuals who find themselves in a situation where they are not treated the same as other individuals who are asked to isolate because of a direction in relation to being a close contact or a COVID-positive case.

We want to ensure that our older people in aged-care facilities are being treated respectfully in the way that they deserve to be treated, regardless of the fact that they are having to isolate or quarantine. We want to make sure that people in mental health facilities—I am just giving some examples—who are being directed to isolate in a particular way, that that is being done in a respectful and dignified manner and the same can be said for children, particularly our Indigenous kids, who are potentially in juvenile detention or in child protection.

We want to ensure that anyone who falls into those categories of individuals who I have just outlined, who are being quarantined at a place other than where they normally reside or another location that is chosen, are afforded appeal rights because, for whatever reason, there may be some concerns about the manner in which and the places in which they are being directed to serve out that period.

They were the specific cohort of people who were raised with me during the briefings in terms of the safeguards and the lack thereof in the original bill. When we talk about the concerningly opaque nature of the original bill and the disquiet this caused, particularly the issues that the Law Society raised, that is the cohort of people who certainly were identified to me as the ones who warranted some appeal rights to ensure they were being directed to stay at a place but had appeal rights accompanying those.

I might add that the reason I lodged a set three of these amendments is to avoid the procedural issues that we raised previously because the Hon. Ms Game raised a very valid point when it came to the original clause 14, which is now clause 15 of this bill, and that is that, by virtue of the fact you have a COVID-positive result or you are a close contact, you are not entitled to attend proceedings that happen in court under the provisions that would ordinarily apply that have been mirrored from the Public Health Act. You are appealing that decision but, because of your COVID status, you cannot actually attend.

However, it is absolutely fair, reasonable and should be expected that, if those individuals want to, they should, if reasonably practicable, have the ability to participate in the proceedings not only by having a legal representative with them or attend for them but by the use of proceedings involving audiovisual link or an audio link.

Rather than go through the procedural steps of trying to amend this amendment to incorporate the part of the provision of the Hon. Ms Game's amendment, which I said I did support, the advice to us was that it was cleaner to incorporate that into a new set, which is what I have done.

I think it is important to place on the record why I think this is an addition that warrants support. The advice I have is that, under rule 15.4 of the Uniform Civil Rules, there is already the ability to have audiovisual appearance in civil proceedings, but as it turns out it is actually not as strong as the Hon. Ms Game has suggested and recommended to this place. Those provisions state that:

(1) The Court may direct or permit the participants (parties, lawyers and witnesses) or a specific participant to appear at a hearing remotely by audio visual or by telephone.

(2) A request to appear by audio visual link or by telephone must be made to the Court in sufficient time before the hearing to allow the Court to decide whether to allow the request and, if so, make appropriate arrangements.

(3) If the Court is unable to contact the party or lawyer at any time within 15 minutes after the time appointed for the hearing at the nominated facility, or by the nominated telephone number, the party or lawyer will be regarded as having failed to appear at the hearing for the purposes of these Rules.

(4) Unless the Court otherwise orders, the costs incurred by the Court in conducting an audio visual hearing at the request of a party must be paid by the requesting party.

What the Hon. Ms Game has put forward is strengthening those provisions by requiring, if reasonably practicable, that a court will, regardless of those rules, allow the person who is subject to the direction to participate in the proceedings by the use of an audiovisual link or an audio link. I do not know how many honourable members here participate in court proceedings regularly; I do, and I think the general practice is that, where somebody is unable to attend, I have seen firsthand where the courts are very amenable to allowing that to happen, and this is why those rules apply. There may be circumstances—I do not know—where the court finds that under these rules this does not happen, but certainly that is generally the practice, and it has been so under COVID.

I attended a court hearing recently where the judges themselves—and this has been standard practice as well—because they are in isolation have appeared via video link. You may have a courtroom full of lawyers and clients, but the judges themselves are appearing via an audio link. If only we could do that in here. I make that point, because I think the amendment proposed by the Hon. Ms Game is a very worthy one. It ensures that there is a higher level of guarantee, if you like, that there will be those measures made available to somebody if they are unable to attend because they are COVID-positive or are a close contact.

The amendments themselves deal with a narrowed field of individuals. I have broadly defined them as more vulnerable in the sense that they may already find themselves in another form of detention: they may be on remand at a detention centre, they may be in a mental health facility, they may be in juvenile detention, it may be somebody in a hospital or somebody who has arrived at an airport and been directed to quarantine somewhere other than their home. There may be instances where the appropriate safeguards are not being afforded to those individuals.

The specific cohort that was mentioned to me that is of particular concern is young kids and people in aged-care facilities. They are the ones that this amendment is focused on ensuring have the appeal rights. I suppose the broader question in terms of the other amendments—and we will get to those—is applying appeal rights across the board to everybody who is required to isolate or otherwise. I appreciate from the government's perspective, and from the perspective of others, it would present some challenges and potentially be unworkable.

Insofar as my amendment is concerned, I will keep my comments at that, but I do have some further comments that I am happy to make when we deal with the other competing amendments around the sorts of appeal rights that may be envisaged by other honourable members, and the reasons we do not support broadening that scope any further.

The CHAIR: I will let the Hon. Ms Game introduce her amendment and speak to that. The next one is the Hon. Ms Lensink, who can introduce her amendment and speak to that. We can have a broad ranging discussion and then decide what action we are taking from there.

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

Amendment No 5 [Game–1]—

Page 5, after line 14—Insert:

90F—Appeal rights

(1) If a person is subject to an individual direction, the person may apply to the Magistrates Court for a review of the direction.

(2) An application under subsection (1) may be instituted at any time during the currency of the direction (and, subject to subsection (3), more than 1 application may be made while a direction is in force).

(3) If a second or subsequent application is made with respect to the same direction, the Magistrates Court must first consider whether there has been a significant change in the material circumstances of the case and should, unless the Magistrates Court in its discretion determines otherwise, decline to proceed with the application (if it appears that the proceedings would simply result in a rehearing of the matter without such a change in circumstances).

(4) The following provisions will apply in connection with an application under subsection (1):

(a) the making of an application does not suspend the operation of a direction to which the application relates (and the Magistrates Court must not suspend or stay the operation of the direction pending the outcome of the proceedings);

(b) the Magistrates Court must consider whether 2 or more applications by separate individuals may be joined or heard together taking into account:

(i) the extent to which it is impractical or unreasonable for individual applications to be heard separately in view of the number of applications before the court; and

(ii) the extent to which there are questions of fact or law that are sufficiently similar or common across a series of applications; and

(iii) the extent to which the directions across a series of applications are the same or similar; and

(iv) such other matters as the court thinks fit in order to best manage the applications in the circumstances;

(c) the Chief Magistrate may make such orders as the Chief Magistrate thinks fit (either in a specific case, in a specific class of cases, or generally with respect to applications under subsection (1)) to assist in dealing with the management and hearing of applications under subsection (1) (and any such order will have effect according to its terms).

(5) Subject to complying with subsection (3), the Magistrates Court may, on hearing an application under subsection (1)—

(a) confirm, vary or revoke a direction;

(b) remit the subject matter to the person who gave a direction for further consideration;

(c) dismiss the matter;

(d) make any consequential or ancillary order or direction, or impose any conditions, that it considers appropriate.

(6) The Magistrates Court may only revoke a direction under subsection (5) if satisfied that the direction is no longer reasonably necessary in the interests of public health.

(7) The Magistrates Court is to hear and determine an application under subsection (1) as soon as is reasonably practicable.

(8) A party to proceedings on an application under subsection (1) may appeal against a decision of the Magistrates Court under subsection (5).

(9) An appeal under subsection (8) will be to the District Court.

(10) The following provisions will apply in connection with an appeal under subsection (8):

(a) the making of the appeal does not suspend the operation of a direction that has been confirmed by the Magistrates Court and the District Court may, as it thinks fit, make any other order with respect to the operation of any other direction that has been varied or revoked by the Magistrates Court (including, if the District Court thinks fit, to reinstate or vary an original direction on an interim basis pending the outcome of the appeal);

(b) the District Court must consider whether 2 or more appeals by separate individuals may be joined or heard together taking into account:

(i) the extent to which it is impracticable or unreasonable for individual appeals to be heard separately in view of the number of appeals before the court; and

(ii) the extent to which there are common questions or issues across a series of appeals; and

(iii) such other matters as the court thinks fit in order to best manage the appeals in the circumstances;

(c) the Chief Judge may make such orders as the Chief Judge thinks fit to assist in dealing with the management and hearing of appeals under subsection (8) (and any such order will have effect according to its terms).

(11) The District Court may, on an appeal under subsection (8)—

(a) confirm or vary the decision of the Magistrates Court, or substitute its own decision;

(b) make any consequential or ancillary order or direction that it considers appropriate.

(12) The District Court is to hear and determine an appeal under subsection (8) as soon as is reasonably practicable.

(13) An appeal under subsection (8) will be heard in the Administrative and Disciplinary Division of the District Court (but will not be subject to the application of Subdivision 2 of Part 6 Division 2 of the District Court Act 1991).

(14) A person subject to a direction who is a party to proceedings before a court under this section is not entitled to attend those proceedings but is entitled to be represented at any hearing by a person (who need not be a legal practitioner) nominated by them and the court must, if reasonably practicable, allow the person who is subject to the direction to participate in the proceedings by the use of an audio visual link or an audio link.

(15) A court must, in dealing with proceedings under this section, take into account the need to ensure that its proceedings do not unduly hamper the work of public officials in dealing with the COVID-19 pandemic.

(16) In this section—

individual direction means a direction or requirement issued to an individual (as opposed to a direction or requirement issued in relation to a class of persons)—

(a) under this Part; or

(b) under Part 11 in relation to a public health incident or public health emergency declared in respect of COVID-19.

This amendment that I propose is consistent with the existing appeal provision of section 90 in the Public Health Act 2011 and it ensures the right of appeal to the Magistrates Court for the individual. I have also requested an addition at (14) to ensure that, where an individual is unable to attend the proceedings, reasonable steps are undertaken to provide the person with an audio or audiovisual link to the proceedings. I do thank the health minister for calling me personally to say he would definitely be supporting at least that section.

I also thank the Hon. Connie Bonaros for her concerns with restoring some kind of appeal rights. But I do find some aspects of her commentary quite misleading, and I do not feel deliberately so. The main difference between our two amendments is that mine is not restricted simply to those who are in detention. It states those who are given an 'individual direction'. That does not apply to thousands of people told to stay at home in a lockdown. That is not an individual direction.

This is where an individual is being given an individual direction from the government. So I just want to be clear about that. Including the words 'individual direction', I have been advised, is reasonable, practical, it covers those who have been given an individual direction and are in detention and it also has some wider scope. It does not mean that it applies to thousands of people given the same direction. I have been advised that does not classify as an individual direction.

The Hon. J.M.A. LENSINK: In relation to these amendments, our position is that we did have an amendment that was drafted in my name. We will be deferring to the Hon. Ms Game's amendment, given that it is largely the same but it also includes audiovisual. Obviously, like many others, we are concerned about the rights of citizens, including their right to reviews and appeals. We consider that now the public situation has eased to the point where we can leave the major emergency then it should also mean that normal provisions of public health should apply. If the public health situation escalates, the Emergency Management Act can be activated through a fresh application.

The amendments that we are supporting and which we had drafted on appeal rights would allow an appeal to the Magistrates Court then to escalate to the District Court based on section 90 of the Public Health Act for people who are affected by, as the Hon. Ms Game has articulated, individualised directions. If you are subject to the same direction as everybody else in the state, that is all people with COVID have to isolate at home for seven days, then you do not get an appeal on that but if you are being subjected to some different personalised direction, such as you are being detained in a secure facility to quarantine for seven days or you have to attend this specified counselling or you have to submit to this particular medical examiner, then you do get an appeal.

Our understanding is that the Bonaros amendment is similar but is limited only to directions requiring the detention of a person, whereas these amendments will apply to any personalised directions.

The Hon. S.G. WADE: I was wondering whether the Attorney might, reflecting on the comments of the Hon. Sarah Game, have any advice as to how many individualised directions might be currently being issued. The Hon. Sarah Game makes the point that most of the directions are a set of general directions—I think it is 15 to 18, including the Emergency Management Act, do most of the work—but whether his advisers might be able to give an indication about whether the public health team is needing to issue individualised directions and how many might be being issued in the current time.

The Hon. K.J. MAHER: My advice is we do not have that information here. We can certainly supply it on notice but we just do not have that available here and now.

The Hon. R.A. SIMMS: I just want to make it clear on behalf the Greens that we are supportive of the amendments being moved by the Hon. Ms Bonaros. I apologise for having to leave the room; I had to take a phone call. From our perspective in the Greens, we believe it is vital that there are appeal rights for people who are in a situation where they are required to isolate or quarantine in a place other than their home environment. We recognise that those people are acutely vulnerable, and it makes sense in that context for them to have clear appeal rights.

What we were concerned about in terms of the broader amendments that are being proposed is that they could open the door potentially for an inundation of our court system with a range of other appeals being made in terms of people being required to isolate at home in relation to other COVID orders. This seems like an appropriate compromise, one that ensures the broader integrity of the system.

I do note the addition of the Hon. Ms Game around videoconferencing facilities and so on, which has been incorporated by the Hon. Connie Bonaros. We are supportive of that as well and think this is a really important addition. Again, these things were not in the original bill and they have been negotiated by the crossbench. Assuming they get support today, I think that will be a really positive addition.

The Hon. K.J. MAHER: For the benefit of the chamber and for you, sir, I indicate that the government will be supporting amendment No. 1 [Bonaros-3].

The CHAIR: I am going to put the amendment, firstly, of the Hon. Ms Bonaros.

Amendment carried

The CHAIR: That effectively means that we are not going to put the question with regard to the Hon. Ms Game's amendment.

Clause as amended passed.

New schedule a1.

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

Amendment No 1 [Simms–3]—

Page 5, before line 15—Insert:

Schedule a1—Related amendment of Parliamentary Committees Act 1991

1—Insertion of Part 5F

After Part 5E insert:

Part 5F—COVID-19 Direction Accountability and Oversight Committee

Division 1—Preliminary

15P—Preliminary

(1) In this Part—

relevant COVID-19 direction means a direction under section 90B of the South Australian Public Health Act 2011, including a direction continued in force as a direction under that section pursuant to Schedule 1 clause 2 of the South Australian Public Health (COVID-19) Amendment Act 2022.

(2) This Part applies in relation to a relevant COVID-19 direction despite any other Act or law to the contrary.

Division 2—Establishment and membership of Committee

15Q—Establishment of Committee

The COVID-19 Direction Accountability and Oversight Committee is established as a committee of the Parliament.

15R—Membership of Committee

(1) The Committee must consist of 5 members of whom—

(a) 2 must be members of the House of Assembly appointed by the House of Assembly; and

(b) 3 must be members of the Legislative Council appointed by the Legislative Council.

(2) Not more 2 members of the Committee may be members of a political party forming the Government.

(3) A Minister of the Crown is not eligible for appointment to the Committee.

(4) The Committee must from time to time appoint 1 of its Legislative Council members to be the Presiding Member of the Committee but if the members are at any time unable to come to a decision on who is to be the Presiding Member, or on who is to preside at a meeting of the Committee in the absence of the Presiding Member, the matter is referred by force of this subsection to the Legislative Council and that House will determine that matter.

Division 2—Functions of COVID-19 Direction Accountability and Oversight Committee

15S—Functions of Committee

(1) The COVID-19 Direction Accountability and Oversight Committee may report to each House of Parliament if the Committee considers that a relevant COVID-19 direction—

(a) does not appear to be within the powers conferred by the Act under which the direction was made; or

(b) without clear and express authority being conferred by the Act under which the direction was made—

(i) has a retrospective effect; or

(ii) imposes any tax, fee, fine, imprisonment or other penalty; or

(iii) purports to shift the legal burden of proof to a person accused of an offence; or

(iv) provides for the subdelegation of powers delegated by the Act under which the direction was made.

(2) A report of the COVID-19 Direction Accountability and Oversight Committee under this section may contain such recommendations as the Committee considers appropriate.

15T—Disallowance of relevant COVID-19 direction

(1) Subject to this section, if—

(a) a relevant COVID-19 direction has been laid before each House of Parliament in accordance with section 15U; or

(b) there was a failure to comply with section 15U in relation to a relevant COVID-19 direction and the Committee has reported that failure to each House of the Parliament,

the relevant COVID-19 direction may be disallowed by resolution of either House of Parliament and will cease to have effect.

(2) A resolution is not effective for the purposes of subsection (1) unless—

(a) in the case of a relevant COVID-19 direction that has been laid before the House in accordance with section 15U—the resolution is passed in pursuance of a notice of motion given within 14 sitting days (which need not fall within the same session of Parliament) after the direction was laid before the House; or

(b) in the case of a relevant COVID-19 direction that has been the subject of a report by the COVID-19 Direction Accountability and Oversight Committee under subsection (1)(b) —the resolution is passed in pursuance of a notice of motion given within 6 sitting days (which need not fall within the same session of Parliament) after the report of the Committee has been made to the House.

(3) When a resolution referred to in subsection (1) of this section has been passed, notice of that resolution shall forthwith be published in the Gazette.

(4) This section does not apply in relation to a direction continued in force as a direction under section 90B of the South Australian Public Health Act 2011 pursuant to Schedule 1 clause 2 of the South Australian Public Health (COVID-19) Amendment Act 2022.

1 5U—Tabling of relevant COVID-19 direction

On the making of a relevant COVID-19 direction, the Minister with responsibility for the administration of the South Australian Public Health Act 2011 must, within 2 sitting days, cause a copy of the direction to be laid before each House of Parliament (and the direction is referred by force of this section to the COVID-19 Direction Accountability and Oversight Committee).

Division 3—Expiry of Part

15V—Expiry of Part

This Part expires on the day on which section 90B of the South Australian Public Health Act 2011 and all directions under that section expire.

This is the amendment to establish the SA public health COVID-19 Direction Accountability and Oversight Committee. The intention behind this amendment is to ensure that there is maximum accountability and transparency in this bill. Like the Hon. Connie Bonaros, we had very clear feedback in the Greens that, were a bill like this to be legislated, it was really vital that the parliament have the opportunity to disallow new health directions, and that is what this committee does. It is a powerful committee in that it has all of the powers that a usual parliamentary committee has, but it will be able to review any new health directions relating to close contacts relating to COVID-positive people and be able to make recommendations to the houses of parliament for disallowance.

This, we believe, is a much more effective way of managing the pandemic directions in the long term. It provides an opportunity for parliament to really consider the impacts that these restrictions have on the health and wellbeing of South Australians. It has been based on the Victorian model, which is widely regarded as best practice. We understand there are, of course, some distinctions based on our different jurisdictions.

It is important to know that South Australia does not have a human rights charter to protect human rights, which is something the Victorian legislation has protected. Obviously, for us in the Greens we would love to see a human rights charter being put in place; that would be a very good accompaniment to the other legislation we are dealing with.

This committee will be made up of five members, two from the House of Assembly and three from the Legislative Council. The amendment would ensure there is a majority of non-government members. That is a really important inclusion worth highlighting, because it means the government is not in a position to dominate this committee. It means the committee will be able to provide frank, fearless advice, genuinely independent advice, direct to the parliament for its consideration.

The committee will be in place only for the duration of the bill. We agreed earlier today that would be six months. It will provide reports to each house of parliament, it will make recommendations to parliament. There is also a requirement that the minister will table a copy of any directions within two sitting days in each house, and that any such direction is then referred to the committee. As I stated, this allows for disallowance in both houses.

We think this is a really important addition. It is one that will provide better outcomes in terms of directions but also give the South Australian people a level of confidence that the parliament is having oversight over these important directions.

We talked a little bit about the evolving space of this pandemic. We have come out of the phase where these decisions were being made by health experts alone, and are now moving into another phase of the pandemic where politicians and the parliament need to be more actively involved. It is only appropriate that if the health minister is being charged with making these directions, the parliament has a role to play and that there is an independent oversight that operates outside of the government. We think this is a really important step in that regard.

The Hon. C. BONAROS: I indicate our support for this amendment. There were a number of amendments that were originally drafted—but specifically the one around the time frame on this bill at three months—which were, I suppose, safeguards in the absence of safeguards that ought to have been in this bill in the first place. It is a very good outcome and an absolutely necessary outcome that this committee has been agreed to by, I am assuming, all members of this place.

A lot of work has gone into this bill behind the scenes by the entire crossbench in terms of trying to address the safeguards lacking from the original bill proposed by parliament. I commend the minister for seeing sense and supporting the safeguards, because without them it would have been a very different outcome. We would have had a bill that lasted only three months, if that, or we would have had another declared state of emergency—which none of us wanted. That is where we were at.

These are very important safeguards and we were all told, all the advice we were getting from experts, was that without these safeguards this bill was just not going to be feasible, that it lacked the protections and safeguards the community of South Australia expected and that we as legislators should ensure were enshrined in this bill.

I think it is also worth noting, and I will put this on the record, that I was very pleased when I saw this amendment, because when I first looked at the bill and started drafting amendments I started from the opposite end of where the Hon. Robert Simms started. I started thinking there was absolutely Buckley's chance of this committee getting off the ground, absolutely Buckley's chance, so I started with the easier amendments, thinking if we got those safeguards in—and we had to—then we would come back in three months and absolutely insist on these further safeguards.

This is a very good outcome in terms of ensuring the safeguards that have been raised with us and which will all work hand in hand. This is a collaborative effort that has been made here and all these amendments will work hand in hand. Disallowance motions, appeal rights, oversight by the committee and having evidence provided to us about the rationale for directions being made all work hand in hand, so when we are giving these powers to the executive, in relation only to those close contacts and COVID-positive cases—and I keep stressing that, because it is very important to stress—there is the appropriate oversight by parliament of the executive in its function in terms of making directions, if indeed any directions at all are made around those.

I think it is also worth mentioning at this point that none of us here have the benefit of a crystal ball. We do not actually know what is going to happen in six months' time. We do not know what is going to happen in three months' time. In fact, we do not even know what is going to happen next week with this pandemic. I am sure the health experts are better placed and have a better idea, with their modelling and so forth, of where we are headed.

COVID hit us like a sledgehammer in this state, and we acted accordingly and appropriately at the time. We are transitioning away from that in the very sincere hope, I think on the part of all of us, that we are not going to find ourselves where we were one or two or 2½ years ago. So it is appropriate that we move away from those very stringent and very heavy-handed measures we had previously towards this approach, but nobody in their right mind in this place would accept doing so without these safeguards in place.

I just emphasise again—I cannot emphasise it enough—the importance of this committee. I think the Victorian legislation, when it was first introduced, was the subject of a lot of contention because it lacked all of its safeguards, and a lot of work went into that legislation to make it the gold standard that it is now. It would have been an absolute missed opportunity on the part of this parliament and the bill absolutely would not have had the support, I think, of a majority of this parliament without the insertion of all of the safeguards that we have managed to pass so far.

This amendment is certainly critical among that list because it allows all the other amendments that we have passed to operate effectively. As I said, these things will work hand in hand and collaboratively together.

The last point I will make before I sit down is the point that the Hon. Stephen Wade made earlier. I think what the COVID committee has demonstrated—and that was just a select committee—is that in terms of getting the appropriate advice and evidence needed it had broad powers, but a statutory committee that is enshrined in legislation will certainly have much stronger oversight and scrutiny powers much more in line, probably, with what the Legislative Review Committee has.

We request all sorts of documents from every single agency every single time we meet, much to the dismay of those agencies, but they form the basis of whether or not we allow a regulation to pass or we disallow a regulation, and I think this committee will serve that function as well so it is critically important to the outcome of this bill.

The Hon. K.J. MAHER: I will very briefly rise to indicate that we support the amendment and thank the Hon. Robert Simms for bringing it forward.

The Hon. J.M.A. LENSINK: The Liberal Party is supportive of these amendments and is pleased that this piece of legislation has had quite a number of amendments to it, which I think demonstrates the value of the Legislative Council in its role as a house of review.

New schedule inserted.

Schedule 1.

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

Amendment No 6 [Game–1]—

Page 5, line 20 [Schedule 1, clause 1, definition of relevant direction]—Delete ‘apparently’

My sixth amendment relates to removing the word 'apparently' from line 20 under schedule 1, transitional provisions of the government's proposed bill. I would like to ask 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'.

The Hon. K.J. MAHER: I thank the honourable member for her contribution and indicate that we will not be supporting the amendment. I can understand the reasoning that the honourable member has put forward. My advice is the word 'apparently' is important in this context. Any directions that are issued now that transfer over into the new scheme that this bill contemplates will continue in force and can be expired in whole or in part but cannot be amended or reintroduced. If there was any technical legal deficiency in a direction that is issued now, once the scheme that is contemplated in this bill comes into force there is no prospect whatsoever of amending it to make up for that technical legal deficiency. That is why the word 'apparently' is there.

I am advised it is not aimed at any particular action that is before a court at the moment. It is there so that it is used in the substance of the directions that are to continue and enforce upon transitioning in respect of any technical legal arguments that might be said to undermine them, because the directions to be continually enforced can be expired in whole or part but cannot be amended.

The Hon. J.M.A. LENSINK: The advice of the former Attorney is that the Liberal Party should not support this amendment, for the reasons outlined by the Attorney-General.

The Hon. C. BONAROS: I will make a brief comment about this, because I think we are dealing specifically with provisions that are being transitioned over as opposed to new directions. The new directions, as we have said, are around close contacts and COVID-positive cases, but these are directions that we have all lived with for a long time and there are some concerns that we are going to undermine those directions. We have talked about the vaccine mandates specifically. There has been reference to those.

I think it is really critical at this point to make the point—and I do this for the public record more so—that there is this perception out there that all of us in this place have mandated vaccines amongst public servants and whatnot or private companies, and that just is not the case. Under the state of emergency, those powers were handed over to the State Coordinator. There were directions that were put in place, certainly during the initial stages, requiring individuals who worked in various places to be vaccinated.

There are legal challenges that are occurring in relation to vaccine mandates at the moment, but to a large extent—regardless of the fact of whether there is a direction there or not—these are employment law matters, they are industrial law matters, and they are matters over which this parliament has had no control. They are not vaccine mandates that we as a parliament have legislated for, but the perception publicly, and I know because I get asked this all the time: 'Why did you support the vaccine mandates?' That is not something this parliament has done. None of us in here passed any laws that mandated vaccines.

Were there directions under the state of emergency that required certain agencies to have their staff vaccinated? Yes, there were. Would they have arisen or did they arise under the employment arrangements of those agencies regardless? Yes, they have and they did. Are there private companies who are requiring their staff to be vaccinated? Yes, there are.

But this parliament, no member in this place, has legislated for mandated vaccines, and I think that is very important to place on the record because certainly the feedback that we have had, and I am sure that others have had, is that we are responsible for mandated vaccines, and that is just simply not the case. We did not direct any company, we did not have the powers to direct any company, we did not pass any laws that directed any company to make sure that their staff were vaccinated. We did not do so with any public agency either, and we did not do so because we do not have the ability to do so.

Those challenges are taking place in the courts. That process will play out. We will find out what the results of those are, but to suggest that somehow we as individuals in this place have mandated vaccines or indeed masks when it comes to high-risk settings is just simply untrue. We have not done that because we do not have the ability to do that. They are industrial employment law matters and will be dealt with accordingly.

The Hon. S.G. WADE: I am just wondering if the Attorney could give us any advice about whether he thinks that this bill when passed, putting aside this amendment, would have any impact on current legal proceedings?

The Hon. K.J. MAHER: My advice is, and the honourable member asked me this earlier and I have some initial advice, that it may do. It may mean that the results have no work to do depending on what the results of the court action are. It might mean that whatever the result of the court action is, when we transition to the new regime it might not have any effect. That is what I am advised.

The Hon. S.G. WADE: My understanding of the Attorney-General's earlier explanation of why he would apparently prefer it not be removed is that this relates to the continuation of the directions at the end of the last emergency declaration, and what we are trying to avoid is any currently unidentified flaw in a current direction meaning that that continuation is problematic. Now of course the cessation has not happened, so any current legal proceedings are happening in a world where the cessation of the last emergency declaration has not occurred, and the continuation of the directions, so I am assuming it does not have any impact on current legal proceedings, but I just hope to clarify that.

The Hon. K.J. MAHER: As I said, I only have some initial quick advice since I was asked, but the current legal proceedings will proceed on foot under the emergency management regime. Once this comes into force this may render whatever decision happens afterwards to have no work is my advice, but I am happy for the lawyers who work in government to let me know if there is anything I need to come back to the member to add or give further advice on.

Amendment negatived; schedule passed.

Title.

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

Amendment No 2 [Simms–3]—Long title, page 1—After ‘South Australian Public Health Act 2011’ insert:

, and to make a related amendment to the Parliamentary Committees Act 1991

Amendment carried; title as amended passed.

Bill reported with amendment.

Third Reading

The Hon. K.J. MAHER (Attorney-General, Minister for Aboriginal Affairs, Minister for Industrial Relations and Public Sector) (18:25): I move:

That this bill be now read a third time.

The Hon. S.L. GAME (18:25): I want to express the very difficult position that I find myself in, to either vote against this bill moving forward and hence staying in the Emergency Management Act, which really nobody wants, or voting for a bill that does not, in my opinion, provide enough safeguards. I do want to thank the Liberal Party, or the opposition, and also SA-Best for showing that they are prepared to collaborate with me on some issues.

I just want to point out the missed opportunity, which I feel lies with the Greens, actually, because they have chosen to not support for their constituents to have a greater right of appeal and not to have greater safeguards. I feel that the reason behind this is quite transparent and is really nothing more than a political move. Were those amendments to be moved by anybody else, I believe they would have supported them.

The Hon. R.A. SIMMS (18:26): I want to speak in favour of the bill and to thank all members for their thoughtful contributions. I think this has been an example of what this house does very well, that is, being a house of review, as the Hon. Michelle Lensink noted earlier. This has been a difficult process, but I think all members have worked in good faith in terms of putting ideas on the table.

I do take issue with the Hon. Sarah Game's criticism of the Greens, because I think what we have done is take a constructive approach in terms of working with this, and we have supported the inclusion of one of Ms Game's ideas in the form of an amendment from the Hon. Connie Bonaros.

In any case, I feel pleased with what has been achieved here today. Certainly, this was not a Greens' bill. It was a government bill, but we have, by working constructively with the government and with the crossbench, been able to negotiate some outcomes that I think really improve this legislation and ensure that there are some good safeguards in place. On that basis, we are happy to support the bill.

The Hon. K.J. MAHER (Attorney-General, Minister for Aboriginal Affairs, Minister for Industrial Relations and Public Sector) (18:27): I will make just a brief contribution. I want to thank members for their patience during the course of this debate. I think it was a baptism of fire for our newest member in here, from One Nation, the Hon. Sarah Game. It has been a difficult procedural debate, but I think it shows two things: when there is goodwill, it can work well, and we have the benefit of having the former health minister being able to give us real life examples. I think it also shows that when we have a time limit we can stick to it, or expand what we say to meet that time limit.

I think there have been improvements made to the bill in terms of the oversight mechanisms, and I think there have been other improvements that show how well it works when the Legislative Council works well. I think it is well understood that this is about transitioning to a new phase. High-risk areas are not places like hospitality venues that we have seen in the past. High-risk areas would be hospitals and aged-care settings, and so we are transitioning to a new phase where the only new restrictions imposed are on those who have tested positive or are close contacts of COVID, not the sort of new restrictions that we have seen in the past. I think that is probably where the South Australian public is and would welcome this bill passing.

Bill read a third time and passed.


At 18:30 the council adjourned until Thursday 19 May 2022 at 14:15.

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