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Covid-19 Disease Emergency (Miscellaneous Provisions) Bill 2020

Cassy O'Connor MP  -  Wednesday, 25 March 2020

Tags: Legislation, COVID-19

Covid-19 Disease Emergency (Miscellaneous Provisions) Bill 2020: Cassy O'Connor, 25 March 2020


Ms O'CONNOR (Clark - Leader of the Greens) - Madam Speaker, this is, without question, the most consequential and sweeping legislation of powers parliament has debated. It is huge legislation that will have significant impact on the lives of many Tasmanians. Its intent is to save lives, to keep people safe and well, to make sure there are powers to ease financial hardships on individual Tasmanians and businesses and to ensure that the ship of state, the regulatory and statutory framework, can go on.

We received a briefing on this legislation before we had seen it yesterday, and I thank the Office of Parliamentary Counsel for what I hear was a frank and entertaining briefing, and have done our best to understand this legislation. It does hand to Government, on trust, enormous powers. It gives to the Premier, the Treasurer and the Attorney-General, sweeping powers, in some ways, and there are constraints in here that relate to the issuing of notices only specific to deal with the COVID-19 response. Nonetheless, I share concerns that have been raised about a potential lack of scrutiny in relation to the way those powers are exercised. We have a number of questions we want to ask the Premier.

I thought I would share with the House, before I went into the detail of the bill, an email I received before lunchtime from a doctor at the Royal, who, I must qualify, is not my son, who is working in the emergency department at the Royal Hobart Hospital and for whom, as a mother, I worry. This doctor says -

Dear Ms O'Connor,

I am a resident working at the Royal Hobart Hospital. Over the last week we have seen a truly alarming uptick in the rate of COVID-19 diagnoses in Tasmania.

At the time of writing, our state sits at 36 confirmed cases. Earlier news reports of cases tout 'no community spread', but unless we enact a hard lockdown in our state it is sadly inevitable. There are strong suspicions that we already have community spread but our testing criteria is not wide enough capture it for the time being.

Unfortunately, not enough is currently being done at a federal level to mitigate the spread of COVID. This is the time for states and territories to act independently and save thousands of lives. This is no exaggeration. Current modelling of COVID spread and mortality paints a very bleak picture and inaction at a federal level is costing us dearly.

Congratulations …


I am sure this doctor meant to the entire parliament -

… on acting decisively early in the piece and enacting restrictions on our borders. This is an excellent move and no doubt bought our state more time. However, this will be for nought if we do not capitalise on this action and enforce lockdown in our state.

You and I both know the Royal Hobart Hospital is not equipped for the wave of COVID-19 patients that we will see if we continue our current trajectory. We already operate at capacity, more often than not, without a pandemic. Our ICU and ventilator capacity will soon will be overwhelmed with unprecedented loss of life.

I urge you to consider a hard lockdown on our state. Every hour counts. A shutdown for the next few weeks will pay dividends in the months to come. Ultimately, history will judge our leaders harshly on this tumultuous time. Please make the right choice. Lives are at stake like never before. I look forward to your response. If you do not want to deem a shutdown necessary, I would appreciate justification.

I gather that this resident medical officer at the Royal Hobart Hospital, whose name I will keep confidential, has written in similar terms to other members.


Sitting suspended from 1 p.m. to 2.30 p.m.


Resumed from above.


Ms O'CONNOR (Clark - Leader of the Greens) - Madam Speaker, before the break I was reading into Hansard a point from a doctor at the Royal Hobart Hospital, who I made it clear is not related to me in any way, who is asking for strong lock-down measures to be put in place. That is certainly being considered as part of an effective response to preventing transmission of the virus.

I will now go through some of the specific questions in the legislation, with the qualifier - and this is particularly for the talented people who drafted this bill - that it is really difficult in the space of two hours to wrap your head around in a way that we would all be satisfied with the provisions in this legislation. So, I may not see relationships between different clauses that explain some of the concerns that we wanted to raise.

Under Part 2, circumstances in which notices maybe issued. From the briefing yesterday, we had formed a view on the information we had that the emergency manager needed to be satisfied that a notice was necessary. Now, as I read this, if you connect clauses 5 and 6 - clause 6 is Emergency manager to approve making of notices and it details that:

A notice under this Act, other than -

(a) a notice under section 20 that relates to the court other than a court of petty sessions or the Magistrates Court; or

(b) a notice under section 22 or section 23; or

(c) a notice under 27 -

may only be issued with the approval of the emergency manager.

This slightly turns around the onus of responsibility, in a way. What we now have is ministers determining that a notice is necessary and the emergency manager approving that notice. The way I read this is that it is not the emergency manager telling a minister that a notice is necessary. It is the minister simply seeking approval from the emergency manager for the notice. Premier, could you explain why that change has been made? That would be helpful because it is these sorts of provisions that can make responsible legislators uneasy about potential abuses of power.

Scrutiny of notices, clause 7. These are the provisions which seek to provide a measure of transparency and accountability about the issuing of notices by the Premier, Treasurer or Attorney General that relate to tenancies, fees and charges and the cessation of the public health emergency declaration. This is the provision that requires the minister to table a copy of the notice before each House of parliament and makes it clear that it is to go to the Subordinate Legislation Committee.

Could we have a really clear explanation of how that would work in practice when parliament is not sitting? That would be extremely helpful and useful.

Ms O'CONNOR - (contd) …that would be extremely helpful and useful.

Clause 8, When notice takes effect and duration of notice: does this mean the notice takes effect on the day it is published in the Gazette or, if it is later, if it is in the notices later that day, is subclause 8(3) -

A notice under this Act is taken to be revoked 60 days after the emergency cessation day.

The emergency cessation day raises some questions. In clause 27, the emergency cessation day seems to be somewhat open-ended, potentially. In clause 27 -

(1) The Director of Public Health must notify the Minister as soon as reasonably practicable after he or she is of the opinion that the relevant emergency circumstances referred to in section 5(2) no longer exist to such an extent that a notice under Part 4 (other than a notice amending or revoking such a notice) may be required to be issued under this Act so as to assist in the reduction of the risk of infection by the disease.

(2) The Minister, by notice, within 90 days after a notice is issued to the Minister under subsection (1), must declare a day specified in the notice to be the emergency cessation day.

Say the Director of Public Health notifies the minister on 30 September this year - I appreciate that is unlikely. Under this provision, the minister has 90 days so the minister could wait until 1 January to issue a notice declaring a specific day to be the emergency cessation day. I may be missing something but, to me, it reads that the minister could declare, for example, if the minister was staggering drunk on power, that the emergency cessation day could be 10 years hence. It is open-ended and concerning. There needs to be some hard dates or temporal provisions in there that make sure the minister cannot just take over the government and shut down democracy in Tasmania. If the Premier could deal with that specifically because we are quite concerned about that.

In clause 11 -

A Minister, by notice, may amend or revoke a notice (other than a notice revoking another notice) that the Minister may issue under this Act.

There is nothing in clause 11 that makes it clear that any amendment or revocation of a notice is published in the Gazette, tabled in parliament, or sent to the Subordinate Legislation Committee. Again, the qualifier here is, I have not had enough time - no-one in this building or on this side of the House has - to really pull all the threads of the clauses together to see how they connect. Can the Premier deal with clause 11 and whether any amendment or revocation of a notice is subject to the same transparency provisions as the issuing of a notice itself?

I know Ms White dealt with this in some detail, but clause 14 relates to the amendment of planning and other permits. Potentially, it give the minister some very significant powers. The minister may take a specific action. This is the statutory timeline.

In clause 14, the minister is empowered to make a notice, amend or evoke a permit or class of permits, including planning permits, and other permits, as prescribed by regulation. I am sure the Premier would agree this does give the minister very significant powers, and to remember that this act also allows for the delegation of the issuing of notices, and some powers under this act.

Could we have some clear reassurance from the Premier that changes to planning provisions or permits would be very narrowly and specifically applied only to the COVID-19 emergency response?

Mr Gutwein - I will be very happy to give you that assurance.

Ms O'CONNOR - Thank you. In Part 3, clause 17 - Authorisation to take actions electronically - it provides the minister with the power to make a notice to allow actions ordinarily required to be undertaken physically, or evidence via a non-electronic means, to be undertaken electronically. This is a necessary amendment in order for public services, and public administration, and our important democratic institutions to continue to function in this time of crisis. I am interested in the Premier's thoughts on how we could - and I know parliament operates within its own time and dimensions - but there must be a capacity at some level for us to continue to conduct a parliament in form -

Mr Gutwein - My understanding is, under a ministerial direction, utilising that clause that we could hold a parliament under those circumstances. If we needed too. I am hoping we do not.

Ms O'CONNOR - I am also hoping we do not. I am hoping we do not do what the federal parliament did, which is to adjourn until 11 August. I do not think that is good public administration. We have had conversations about the importance of keeping our democratic institutions going, with all those safeguards in place.

Having a very extended parliamentary break would certainly concern us. I believe it would worry the community more broadly, if they thought we were not on the job. If they thought - which many do now, as a result of the decision of the federal government in parliament - that parliament was going to cease until August. Members of parliament, senators, would just go off to their home towns, sit on the couch and watch Netflix, on the public purse. I understand why everyday people would be resentful of that, given how many people have lost their jobs and their businesses. A measure of hope for the future this year at least.

The financial hardship provisions in Part 5. These relate to commercial tenancies, to restricting rent increases or the termination of commercial tenancies. I wandered over to the ghost town that is Salamanca to buy something for lunch today. I was chatting to one of the local business owners there who was remarkably relaxed. 'Sanguine' is a good word for it. He talked about the rents. He has two businesses, one is at Salamanca and one is at Moonah. Over the next six months his rental bill alone is $270 000. This is a business operator who has spent 35 years building up his business. It is a very successful and terrific business. That is only one story of a commercial business operator facing that kind of unpayable rents.

We support this part and it is really clear:

(2) The Minister may, by notice, declare that, despite any provision of a lease, other than a lease to which the Residential Tenancy Act 1997 applies, a lease that is within a class of leases specified in the notice must not, within the emergency period, be terminated, and the rent payable under the lease may not be increased, in the circumstances set out in the notice.

They are excellent provisions in order to try to put as many businesses as possible into hibernation and shepherd them through the dark times. I do not see those same protections for residential tenancies. I know there are some but these measures provide substantially more tangible support to business owners than they do to residential tenants.

We are dealing with a situation where tens of thousands of Tasmanians have lost their jobs. There are people now already rigid with fear about how they are going to pay their rent in the private rental market and yet as far as I can see, there is no firm mechanism in this legislation to ensure you are putting a freeze on rent increases for residential tenants in the same way that you are for business operators.

This provision is really clear: the rent may not be increased for commercial tenancies. Yet the rent could be increased for residential tenancies. There is no specific provision in here for there to be a freeze on rent increases for people in the private rental market and they will be needed.

I already asked the question about the emergency cessation day and we do not want to go into Committee for a range of reasons. We are hoping the minister will answer the question, the concern that we have about open-endedness about an emergency cessation day.

On the Consequential Amendments - Schedule 2 - it is a very big step during this emergency period, to remove protections under the Personal Information Protection Act 2004. We accept that in order to save lives and in order for different jurisdictions to be able to communicate with each other about people who are potentially carrying the disease and not complying with orders, there will need to be some flexibility around the protection of personal information. However, this power must be used very carefully because the parliament enacted a Personal Information Protection Act for good reason and that is to protect, to the greatest extent possible, the privacy of citizens who come into contact with the arms of government.

Could the Premier provide some reassurances about how narrowly the lifting of the application of the Personal Information Protection Act in these circumstances will be applied?

In the Schedule, the consequential amendments that relate to the Residential Tenancy Act are quite limited in a way. It is positive in that it will prevent the eviction of a tenant on the basis that they cannot pay their rent but it does not do anything to ensure rents are not unreasonably increased. These changes also make sure that real estate agents and staff are not exposed to potential risk by having to undertake personal inspections in place. That is a positive.

We are concerned that there is much more bureaucratic effort required for private tenants. You have to go to the Residential Tenancy Commissioner if you want to have a lease terminated or if you think a rent increase has been unreasonable. That is a capacity that the Residential Tenancy Commissioner already has, but there is nothing in there that will stop serious rent increases in a time of emergency when many people will not be able to pay their rent. That is a hard and sorry fact.

There are jurisdictions that have gone much harder on social protections in response to the Coronavirus. The Western Australian Government has just declared that they are going to put a freeze on electricity bills, utility bills and the like. In France, Emmanuel Macron has made assurances that there will be strong protections in place, including rent holidays and the like, in order to keep people housed. In London, for example, a city that a number of us will have been to and where homelessness is right in your face, right there, on every street and every street corner, there are homeless people, but not anymore. It is interesting that, in London, a choice is being made to provide safe accommodation for people who are homeless. It tells us something about the dark side of the capitalist system - until there is a widespread public health risk, until it is possible that rich people might contract the virus, we have been leaving homeless people on the streets of London. It is possible to solve homelessness overnight. These are choices we make as a society.

It is amazing how swiftly governments can respond to issues like chronic homelessness when there is an existential threat on the doorstep. We are going to see huge social pressure. People are going to be at increased risk of homelessness because they cannot pay their rent and we need to have strong measures in place to ensure we are keeping people safe inside their homes. For people who are living on the streets now, and we know they are still on the streets of Hobart, we need to have a strong, coordinated, protective response for those people.

We also need to understand that the prison system is a place of high-risk transmission. There are prisoners, inmates, in our correctional facilities who have multiple chronic health conditions, and there are inmates in the system who are low-risk. We have written to the Attorney-General, asking her to follow the lead of other jurisdictions, including New South Wales, to release low-risk prisoners back to their homes in the community, and to put more protections in place for inmates who remain and for correctional staff. These are unprecedented times and we cannot be treating people in a classist way. People are people, and there are family members of detainees in our corrections system in Tasmania who are highly stressed about the risk to the people they love. Let us remember, some of those inmates will be in there for quite minor offences and are not a community risk. We strongly encourage the Government to listen to what Dr Woodruff is saying on our behalf but also to advocates for prisoners, including lawyer, Greg Barns.

We recognise that this bill is going to be the last opportunity for parliament to get it right in a legislative sense, and which hands very significant powers to ministers. We are doing this on trust, and we are doing this because we have committed to working together and we are doing it out of love of this island and its people. This is very significant legislation. It is potentially open to abuse. I am trusting you, Premier, not to abuse the powers this parliament will be vesting in you this day. I am sure the upper House will also pass the legislation and we hope that they do, but this is a huge trust ask and I ask you to respect that.