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COVID-19 Disease Emergency (Miscellaneous Provisions) Bill (No. 2) 2020 - In Committee

Cassy O'Connor MP

Cassy O'Connor MP  -  Thursday, 30 April 2020

Tags: Coronavirus, Justice, Police, Parliament, Legislation, Legislative Council

COVID-19 Disease Emergency (Miscellaneous Provisions) Bill (No. 2) 2020 In Committee: Cassy O'Connor

 

Madam DEPUTY SPEAKER - For the purpose of maintaining social distancing I shall Chair the Committee of the whole House from the Speaker's Chair.

 

Ms ARCHER - Madam Deputy Speaker, I declare this bill to be an urgent bill. Therefore I move -

That the bill be declared an urgent bill.

Motion agreed to.

Ms ARCHER - Madam Deputy Speaker, I move -

That all remaining stages of the bill shall be concluded by 6.30 p.m. today.

I understand we have a 20-minute debate now, if needed, for members' awareness. With the urgent nature of this bill, necessitated by the Government's response to the COVID-19 crisis, this bill is required to move to the Legislative Council as soon as practical. I know that they are waiting on this bill. Should there need to be anything further that comes back to this House to consider from the Legislative Council, it is going to be an interesting time. We need to do that today.

I do realise the circumstances of this bill. I know that non-Government members received the bill on Tuesday, but there have been fairly extensive briefings. We have attempted to deal with those matters as thoroughly as possible. I appreciate that some members may wish to provide amendments and, certainly, we will be moving an amendment but my comments will be brief in relation to the Government's amendment. I believe I have dealt with most of the reasoning throughout the second reading debate and we will manage in the next hour or so.

I know that some amendments may no longer be necessary but in the interests of getting this bill through - and this bill is the bill being done today because it is the most urgent, priority bill that we need to get through, not least because of the Legislative Council, but because of the provisions contained in it. I mention that as a specific example because I know that it is very time specific. In the interests of not prolonging this, should members wish to make contributions themselves as well, I will confine my comments to that.

Motion agreed to.

Clauses 1 to 2 agreed to.

Clause 3

Interpretation

Ms ARCHER - I am moving an amendment in relation to clause 3, page 4, the definition of 'emergency cessation day'.

The amendment is to -

Leave out the definition and instead insert the following definition -

Emergency cessation day has the same meaning as in the COVID-19 Disease Emergency (Miscellaneous Provisions) Act 2020.

The Government's new amendment of clause 3 of the bill provides a new definition of emergency cessation day. That definition provides that the definition of emergency cessation day is the same as the definition used in the COVID-19 Disease Emergency (Miscellaneous Provisions) Act 2020. This provides consistency between the two acts.

In the bill before us the definition of 'emergency cessation day' was provided for separately at clause 21, so once the new definition is included at clause 3 that clause will no longer be required. With regard to clause 17, that clause provides that Part 6 makes consequential amendments to the already in force COVID-19 Disease Emergency (Miscellaneous Provisions) Act 2020. As I mentioned previously, the Government's amendment to clause 3 will provide the consistency between these definitions.

Ms O'CONNOR - We support this amendment. This was, in fact, our first amendment. It was very important that there be consistency and I am encouraged by the fact that the Government's amendment has precisely the same wording as ours, which points to the quality of our staff.

Amendment agreed to.

Clause 3, as amended, agreed to.

Clauses 4 to 9 agreed to.

Clause 10 -

Interpretation and application of Part 3

Ms O'CONNOR - Madam Chair, I move that section 10 is amended as follows, by inserting in subsection (1) before the definition of the act, the following definition -

Committee has the same meaning as in the Public Accounts Committee Act 1970.

Our amendment to clause 10 and to clause 11 provides an oversight mechanism for contracts entered into by the Tasmanian Health Service under this part that are either of a duration exceeding one year or of an estimated cost exceeding $20 million. The powers being proposed in the legislation we are debating today are excessive and they are not reasonable.

Our amendment to clause 11, which is coming, is adapted from the Public Works Committee Act 1914 and provides a framework for these contracts to be scrutinised by the Public Accounts Committee. This is necessary for proper scrutiny of contracts that are able to subvert current processes and law.

The recent Integrity Commission Report (No. 4) 2019 shows how under normal circumstances, contract processes can be corrupted. The risks involved when normal requirements are waived without public scrutiny are heightened. The threshold of either a duration exceeding one year or of an estimated cost exceeding $20 million is reasonable and should not impede smaller value contracts.

I take this opportunity while I am on my feet speaking about scrutiny that is applied to the decisions under the emergency period, to again express my concern that technical arguments are being used to deny the Subordinate Legislation Committee the opportunity to examine directions that are made under the Public Health Act.

Government might view a committee of the parliament overseeing directions in an emergency as an impediment or a block on executive power or an annoyance, and it may be to be to government of the day. But we should not be afraid to allow the Subordinate Legislation Committee to look at directions made by the Director of Public Health, given that they impede on the rights and freedoms of every day Tasmanians.

They restrict who we can spend time with. They restrict our movements. They prevent us from enjoying our parks and beaches. While we understand these are important measures, they cannot be made in a scrutiny vacuum. Did you know, Madam Chair, that it is consistent across all Australian and New Zealand jurisdictions, with the exception of Tasmania, that Subordinate Legislation is regarded as any regulation, order or notice that is made under an act. There is no exception in the Public Health Act for directions not to be scrutinised as regulations.

This is a flaw in the scrutiny mechanisms. We were reassured in the debate on the last COVID 19 bill that there was strong oversight and scrutiny mechanisms in place. That does not appear to be the case and we should not be denying this extremely powerful oversight committee, if it uses its powers, the opportunity to examine some of the directions that have been made by the Director of Public Health and potentially to improve them for government.

I refer all members of the House to a legal opinion that has been prepared by Professor Brendan Gogarty and Professor Gabrielle Appleby on the role of the Tasmanian Subordinate Legislation Committee during the COVID-19 emergency. This makes it very clear that the Subordinate Legislation Committee is not able to properly scrutinise measures that have been taken during the emergency period and that is a matter of great regret. We were somewhat reassured during debate on the last bill that the Subordinate Legislation Committee would have a strong oversight role and that does not appear to be the case.

Ms ARCHER - On that last point, there are certain things that the Subordinate Legislation Committee cannot deal with and they are things that are not regulations. Specifically, in relation to the amendment -

Ms O'Connor - Directions are regulations. I know you have some technical advice that says they are not, but they are.

Ms ARCHER - I will deal with your amendment. Part 3 of the act clarifies that the Tasmanian Health Service can enter into contracts to ensure that hospital and health services may be performed or provided as necessary during the emergency period either by the THS or by the person being contracted with such as with THS assistance. These contracts can be subject to the same level of scrutiny as existing THS spending both through annual reporting and parliamentary oversight. The THS already has broad powers to enter into contracts in relation to the provision of health and hospital services to Tasmanians, including the purchase of health and hospital services. These contracts must be consistent with the service plan. The service plan framework is not responsive to the fast-changing needs of the COVID-19 emergency.

What we are dealing here with the amendment is facilitating the ability of the THS to work even more closely with private hospital and health providers to ensure a coordinated health response. The existing statutory accountability frameworks will continue to enable proper scrutiny of THS's spending. For example, the Public Accounts Committee Act 1970 provides the Public Accounts Committee with broad functions to inquire into matters of its own volition or in response to referrals from the House.

The THS is a statutory authority within the meaning of the Public Accounts Act. The secretary as governing authority of the THS, together with the executive members, are also subject to all state service accountability requirements. The committee can inquire into public sector finance matters which is broadly defined. It includes monies in the public account, monies received or expended by agencies and statutory authorities or expenditure authorised under any act.

The amendment in this bill is already subject to proper scrutiny arrangements and is consistent with the existing statutory purposes of the THS. These are to promote and maintain the health of persons in Tasmania and to ensure the provision of care and treatment to people in Tasmania. I have just been spending a whole page explaining the oversight for the THS and its expenditure. The Government will not be supporting this amendment by the Greens. There are checks and balances in place. This bill does not change any of those checks and balances or obligations or reporting and for that reason we will not be supporting the amendment.

Ms O'CONNOR - Given that the Attorney-General has indicated the Government has no wish to embed the accountability mechanism in this act I will now read into the Hansard the second amendment - our fourth amendment but the second amendment to this section - and that amends section 11 as follows, by inserting the following subsection after subsection 2(e):

The committee shall consider and report upon every contract proposed to be entered into under this section that where the duration of estimated cost of the contract exceeds one year or $20 million respectively.

(f) No contract to which subsection(e) applies shall be entered into unless it has first been referred to and reported upon by the committee in accordance with this section.

(g) The committee shall with all convenient despatch deal with the matter and shall as soon as conveniently practicable, regard being had to the nature and importance of the nature and importance of the proposed work, report to the House of Assembly and Legislative Council if the House of Assembly or the Legislative Council is then in session and if not to the Governor, the result of their inquiries.

(h) If in a report under subsection (g) of this section the committee does not recommend entering into a contract to which the report relates, that contract shall not be entered into unless and until it has been authorised by an act.

It is clear to me that there is no appetite to ensure you have got that scrutiny in this legislation. I am not reassured by the Attorney-General's response to the first amendment we put in this section.

It is disappointing that what we are doing here in the legislation is saying to the THS, 'Off you go, enter into contracts with whoever you feel it is necessary to enter into contracts with'. There are no restrictions there. We are telling them that it does not have to be consistent with the ministerial charter. It is not specified. It does not have to be consistent with a service plan and it would, but for this section, otherwise not be authorised under the act. Again, why would we not put in this legislation that check-back to the Public Accounts Committee? It baffles me. Is it because it is a Greens amendment or because this Government is still allergic to the measure of scrutiny that is required even in an emergency period? In fact, even more so in an emergency period when we do not have regular parliamentary oversight and the Subordinate Legislation Committee is not doing the work we were told it would be doing - that is, rigorous oversight of the emergency measures that have been taken.

I am very disappointed that these amendments are not being accepted. I believe it makes the act weaker and does not reassure us that there will be enough checks and balances and transparency, line-of-sight suspending decisions as a result of this clause.

Ms ARCHER - Ms O'Connor moved a further amendment to that so I wanted to speak to that.

Ms O'Connor - I haven't moved it because they live together. You can't have one without the other, so seeing as you have killed the first one I am just telling you what we would have done with the second one.

Ms ARCHER - I can speak again. I wanted to say that the proposed amendments to clause 11 of the bill would unnecessarily add significant time to the procurement process in an emergency declaration period. I know that you are not moving that but for the record I want to make it very clear that this is for an emergency period. The time that it would take to submit a proposal to the Public Accounts Committee and have it approved would be pretty untenable in the circumstances.

Ms O'Connor - It could be turned around within a week and you know it.

Ms ARCHER - Not with my knowledge of the Public Accounts Committee. The purpose of the provisions in clause 11 is to put in place appropriate mechanisms for emergency periods to allow the THS to be able to provide support to the private sector in order to assist them and not only keep their doors open but to maintain their capacity to provide medical services to Tasmanians in the circumstances created by the COVID-19 emergency. It is not envisaged that THS would be providing a service that it does not already do within public hospitals, but Part 3 of the bill will allow the THS to do those things as a contractor to assist private providers to continue service delivery.

The need for these amendments is that these contracts and arrangements are required in very short time frames and the additional burden of going through a Public Accounts Committee review defeats this purpose in emergency situations like this. The one-year threshold is particularly problematic. While it is unlikely in the current circumstances it is foreseeable that a contract could extend beyond the emergency declaration period. The issue is that you could enter a contract on terms that could run on a month-to-month basis that could, if the emergency continues, trip up on these thresholds after they have been otherwise validly entered into.

The purpose of Part 3 is to enable the THS to move quickly to provide support to a private provider. It is simply allowing the THS the same freedom to act as the Crown. The proposed amendments create a greater layer of red tape in a time of emergency that would exist if we were not dealing with COVID-19.

Ms O'Connor -That is a breathtaking admission.

Ms ARCHER - No, it is not a breathtaking admission. It is interesting how the Greens have very much changed their commentary today from what we heard previously from them.

Ms O'Connor - What? That's rubbish.

Ms ARCHER - There has been substantial recognition by this House, and rightly so, that we are in in extraordinary, unprecedented times.

Ms O'Connor - It does not mean you abandon parliamentary scrutiny. It does not mean you can do that.

Ms ARCHER - These are challenging times that none of us has ever experienced before, and no, it is not a rubber stamp to do everything but we need to take practical measures to ensure that our services operate and particularly our medical services. I am conscious of time so accordingly the Government will not be supporting these amendments.

Ms O'Connor - I feel so strongly about this one. We will not be dividing on all clauses but we will on this one.

The Committee divided -

 

AYES 7

Ms Butler

Ms Haddad (Teller)

Mr O'Byrne

Ms O'Connor

Ms Standen

Ms White

Dr Woodruff

 

 

NOES 9

Ms Archer

Mr Ferguson

Mr Jaensch

Ms Ogilvie

Mrs Petrusma (Teller)

Mr Rockliff

Mr Shelton

Mr Street

Mr Tucker

Amendment negatived.

Clause 10 agreed to.

Clauses 11 to 19 agreed to.

Clause 20 -

Principal Act

Ms O'CONNOR - Madam Chair, I move -

That clause 20 be amended by:

New clause (i) be inserted:

Section 60A amended and that is section 60A of the Emergency Management Act 2006. Section 60A of the principal act is amended as follows:

(a) By inserting in subsection (1) before the definition of 'personal information' the following definition:

'emergency cessation day has the same meaning as in the COVID-19 Disease Emergency (Miscellaneous Provisions) Bill 2020'; and

(b) By inserting the following subsection after subsection (2):

(3) This section is repealed on the emergency cessation day.

Our understanding on passing the COVID-19 Disease Emergency (Miscellaneous Provisions) Act 2020 was that the provisions in their entirety were temporary and tied to the emergency cessation day. Of course, it now transpires that that was not the case. I do believe in my discussions with the Premier that that was his understanding too.

We do not believe the Government should have an issue with this amendment. Our amendment repeals the section 60A inserted by the COVID-19 Disease Emergency (Miscellaneous Provisions) Act 2020 on the emergency cessation day as defined by the COVID-19 Disease Emergency (Miscellaneous Provisions) Act 2020.

Section 60A of the Emergency Management Act allows for the overriding of the Personal Information Protection Act 2004 during an emergency period. This was passed in a bill that was forced on the parliament at short notice and we are concerned that our belief that these changes were temporary has not, in fact, transpired to be true. If the Government wishes to make this provision permanent, truly they should attempt an amendment at a later date, consult the public and have a full and proper debate on the subject.

The last piece of COVID-19 legislation we debated suspended the application of the Personal Information Protection Act during the emergency without public consultation, and it suspended it permanently. That is of enormous concern. We cannot allow an emergency to lead to the erosion of the rights of Australians and Tasmanians. We cannot allow this emergency to provide cover for the erosion of the right to privacy and the protection of our personal information without a full and proper public debate about it. This is about the protection of personal information.

We understand that in an emergency you need to give maximum flexibility to health authorities, to law enforcement authorities and to government to make sure that they have access to the information that can keep people safe. We accept that and that is why we supported the change, reluctantly, in the first COVID-19 bill.

Now it transpires, after a couple of weeks of us trying to find out whether it was permanent, that it is a permanent change. There has been a permanent erosion of the protection of people's personal information under cover of an emergency response. That is very concerning. That provision should expire on the emergency cessation day and if it is deemed necessary for future emergencies, bring it back in here as a standalone amendment, consult on a draft bill and talk to people who are affected when their right to privacy and the protection of their personal information is taken away by parliament.

We are very concerned that this is a permanent change. It was not flagged with us as a permanent change. It has taken more than a week for us to extract from the Attorney-General that it was a permanent change

Ms Archer - I would not say 'extract'. I apologised for the delay. We are in extraordinary circumstances.

Ms O'CONNOR - Okay, I take that back, unreservedly, but it did take a week for us to find out whether it was a permanent change. It is. It cannot be justified without a proper public debate. We want this provision to expire on the emergency cessation day and then, if it is necessary, in the Emergency Management Act, let us have public consultation. I know it is quaint, slightly old fashioned, but it does make for better law. It means you build trust in the community about the decisions being made by parliament and trust in the community that the decisions are being made in their best interests.

 

Ms ARCHER - I will clarify - and I made this very clear in the debate in my summing up in the second reading speech. There appears to be some confusion regarding this suspension of the PIP Act relating to the COVID-19 emergency and other declared emergencies.

As I said during the debate, I can reassure members and all Tasmanians for that matter, that the PIP Act continues to apply. It has not been completely suspended at all. It continues to apply to collection, use and disclosure of personal information except in very limited circumstances during a state of emergency. I went through, clarified and explained exactly what occurs in this situation and in relation to what was mentioned in the second reading speech when the COVID-19 Disease Emergency (Miscellaneous Provisions) Act 2020 applied.

The proposed amendment by Ms O'Connor would see section 60A of the Emergency Management Act 2006 being repealed on the emergency cessation day defined in the first COVID-19 emergency act to which I just referred. The new section 60A inserted into the Emergency Management Act 2006 by the COVID-19 Disease Emergency (Miscellaneous Provisions) Act 2020 provides that certain provisions of the Personal Information Protection Act 2004 do not apply to the sharing of personal information of certain bodies or persons performing functions or powers under the act, the Public Health Act 1997 or another state or Commonwealth act relating to the management of an emergency or public health where personal information is requested, required, obtained, disclosed or used during the state of emergency.

The circumstances of the COVID-19 emergency are unique and unprecedented. This emergency is not constrained within Tasmania, it is affecting all of Australia and indeed most of the world. It is also unusual in that it is a public health emergency that heavily involves agencies other than Health in the response. As a consequence of these unique and unfolding circumstances, certainty was wanted for frontline workers who needed to share information between departments and with other states and the Commonwealth that they were not acting in breach of the law.

For example, if an individual returned from overseas and was subject to an isolation requirement, that information could be passed to another department or to another state if the person left Tasmania so that isolation requirement could be enforced. The House should spare a thought for that very practical implication if this was not in place. There are already exemptions in the act for sharing information, but given the immediate nature of the initial response and the genuine need, and I stress the words 'genuine need' to share personal information, the Government simply sought to protect frontline staff who were genuinely responding to the emergency requirements in the interests of public health and safety. For that reason the Government will not be supporting this amendment.

Ms O'CONNOR - Madam Chair, we recognise the genuine need for authorities to be able to share information that keeps people safe, but the Attorney-General herself said it - these are unique and uncertain circumstances. What we are dealing with is a point in time where there is a pandemic emergency wherefore under these circumstances when parliament passed the first bill it agreed that the Personal Information Protection Act could be suspended to enable health authorities particularly but working with law enforcement authorities to be able to exchange information about people in order to contact trace and other measures that need to be taken to keep people safe.

The Attorney-General herself said it. The amendment in the first act was about this point in time, this emergency, this pandemic. But what we have here is an erosion of people's right to have their personal information protected because it has become a permanent provision in the Emergency Management Act. The Attorney-General did not make the argument for extending the suspension of the Personal Information Protection Act.

Ms Archer - You must not have listened to my summing up.

Ms O'CONNOR - I listened to every word you said. You made an argument but it was not persuasive. I can see what is happening here. It does not engender trust when we came in here in good faith on that first bill and we did everything we could to get it through to make sure the Government had the powers it needed to keep people safe and respond to the emergency. In good faith we supported the suspension of the PIP Act and the Emergency Management Act, but we were led to believe in the briefing and in the second reading that it was a temporary change.

That was a direct response to the emergency situation that we are in, but it is not, it is a permanent change now to the Emergency Management Act and there has been no reference back to the people this will affect most, people whose personal information will become somewhat less secure potentially in the future, not just for the pandemic emergency.

I do not want to think that this has been done dishonestly or stealthily. In fact, I refuse to allow myself to go there in these circumstances, but what we have here is a permanent capacity for people's personal information to be exchanged between agencies of government in a way that it has not been before this emergency.

The Committee divided -

 

AYES 2

Ms O'Connor

Dr Woodruff (Teller)

 

 

 

 

 

 

 

 

 

 

 

 

NOES 14

Ms Archer

Ms Butler

Mr Ferguson

Mr Gutwein

Ms Haddad

Mr Jaensch

Mr O'Byrne

Ms Ogilvie

Mrs Petrusma

Mr Shelton

Ms Standen

Mr Street (Teller)

Mr Tucker

Ms White

New Clause A negatived.

Clause 21 -

Section 60C inserted

Ms O'CONNOR - Madam Chair, I move -

That clause 21 is amended as follows:

(a) by inserting in subsection (1) before the definition of 'infringement offence' the following definition:

'emergency cessation day' has the same meaning as in the COVID-19 Disease Emergency (Miscellaneous Provisions) Act 2020.

(b) by inserting the following subsection after subsection 6(7), this section is repealed on the emergency cessation day.

Madam Chair, the rationale put forward for Tasmania Police to be able to issue infringement notices is a very strong one. We support it for the duration of the emergency because it will mean that for some people it will avoid a much heftier penalty and potentially an appearance in court. Again it is a change to the Emergency Management Act that gives police new powers. When we are giving any law enforcement agency, even one with a culture that is robust and good as Tasmania Police, it is important that we have a public debate about it and that there are checks and balances in there.

We are moving that the infringement issuing powers of Tasmania Police expire on the emergency cessation day. It reflects our concern that in the legislation we passed three-and-a-half weeks ago, we were told that it was only in response to the emergency. We find out that there are permanent changes that have been made without public consultation, without any debate publicly. We believe that these powers should expire on the emergency cessation day and if there is a strong argument for them becoming public, then let us have some public consultation and let us have a debate about it. That is how you make good law. I move the amendment.

Ms HADDAD - Madam Chair, I seek some clarification. I shared some of those concerns about the enduring nature of making this change and arming police with the ability to issue infringement notices to people for offences under the Emergency Management Act permanently, outside of the period the emergency period that we are now in.

I acknowledge that the Attorney-General gave several answers during the debate and that we are on a time limit now. I seek some clarification, while recognising that those offences are very serious offences and they carry with them serious penalties for good reason - we support the fact that those serious offences exist and that they with them carry serious penalties - but it is a departure from how things are currently undertaken in terms of the long-term effects of potential changes. There is still the capacity if these changes were to cease on the cessation day for police to still arrest and charge people for offences under that.

I want to seek clarification from the Attorney-General. In your comments earlier in the debate you said that it would be possible for someone issued with an infringement notice to challenge it in court. I was speaking to one of my colleagues from the upper House who informed me that her understanding from the upper House briefing received yesterday was that the process for contesting an infringement notice issued by a police officer would be to write to the Commander during a period of emergency. I wanted to clarify which of those is the case.

Ms ARCHER - I will deal with that issue first because it is easier to answer. The administrative right that you have just mentioned is in addition to the right to go to court. They have an administrative avenue and not 'an either/or' but an 'and' they have a court avenue as well.

In relation to the proposed amendment by Ms O'Connor that would see the ability to issue infringement notices under the Emergency Management Act 2006 cease at the end of the current emergency. What this emergency has shown us, and I said this during my second reading speech in summing up, is that a power to issue infringement notices to enforce restrictions during an emergency is desirable. We are now over six weeks into the current emergency and do not yet have that ability. As a result, it is desirable that the authority be enduring so that it is there for the next emergency should we require it.

Should we have another emergency we do not want to be fighting a rear-guard action where we need parliament to provide an authority after the emergency has started. Ehat this emergency has shown us is that we do need to be well prepared. I am a little surprised at this amendment because I think the learning from this experience should be taken on board. Even today with the release of the health interim report it is the learnings from these experiences that we need to take to address for any future crises or emergencies of this nature.

This is something that could be reviewed after this emergency, but in advance of any future one an ability to issue an infringement notice is not contentious. The offence will exist as I have previously said regardless of this provision. People can still be prosecuted regardless of this provision. An ability to issue an infringement notice provides police with another tool, one that is likely to provide a more immediate effect in gaining compliance, should they need it. However, I know that their practice has been to take an educative approach. As I have just said to Ms Haddad, it does not take away any right from the person to whom it is issued. That person still has the option of having the alleged offence heard and determined by a court but they also have the option of not having to go to court if they accept the infringement. I spent some time on that during the debate.

The primary approach of police will continue to be educational. I know that they do not want to be having to issue these on-the-spot fines. However, some people do not heed the advice and the warnings and comply as others have been, so we need to encourage compliance. The infringement notice provision is only in relation to the Emergency Management Act 2006. An offence under the act and an ability to issue an infringement notice would only exist when the act is in operation. This is not the case day to day and consequently there is no risk of the provisions being utilised outside of an emergency response under the act.

Ms WHITE - Thank you for that explanation and I understand the reasoning you have given. Can you help us to understand how many times the act has been in operation since it was first created in 2006 to give an indication of how frequently these powers might be required to be used, based on historical usage?

Ms ARCHER - We have had situations of alert under this act with bushfires, but we have not, to our knowledge, exercised state of emergency. In fact, I am sure we have not and I said that in summing up as well. We have not exercised state of emergency at all, until now.

Ms WHITE - To go to the amendment moved by the member for Clark, the concern has been about whether these powers remain permanently beyond the emergency and can be used as a tool, but it seems unlikely beyond the cessation of the state of emergency that they would be able to. There will just be an act of parliament today to provide the preparedness powers, as you have indicated, so that if a state of emergency is declared the police can respond immediately. It is very unlikely that beyond the period of this emergency they will be utilised again unless another state of emergency is declared. If you could address that, it would help us feel comfortable with this.

Ms ARCHER - I thought I made that clear in summing up but I am very happy to confirm that is the case and members can be comforted by the fact that you do not call a state of emergency lightly. When we as a Government were considering a state of emergency, it is one of those things you do as a very last-resort option to ensure you can respond as required in this type of emergency situation. The State Controller, who has enormous powers and we all appreciate that and why, comes into play. It is something that is exercised in extraordinary circumstances such as we are experiencing at the moment. I do not think any of us have really got used to it other than it becomes a little bit more routine as to the social distancing, but every so often it hits you, the extent of how all Tasmanians and indeed Australians and people across the world, how we are having to react to this emergency situation. It is quite extraordinary and unique.

Ms White - Thank you for stepping us through that. You can understand how important it is for us to be very clear about this.

Amendment negatived.

Clause 21 agreed to.

Clauses 22 to 28 agreed to.

Clause 29 -

Emergency cessation day

Ms ARCHER - I will be quick as Ms O'Connor has one more and I am mindful of the time. When I was moving the amendment to clause 3 I foreshadowed that clause 29, as a consequence of changing that definition, was no longer required, so I will simply be voting against it. I know that is unusual.

Clause 29 negatived.

Clause 30 -

Regulations

Ms O'CONNOR - Madam Chair, I move -

That clause 30 be amended by inserting the following subsection (10) after subsection (9) -

(10) This section is repealed on the emergency cessation day and any regulations made under this act are rescinded on the emergency cessation day.

We are uncomfortable with the broad scope of this clause. The regulatory powers are very significant and do not explicitly expire on the emergency cessation day. In the interests of being cooperative and recognising that some regulatory powers will be needed to administer this act, we are prepared to amend this clause to cause the regulation-making powers to expire on the emergency cessation day and for regulations made under this act to be rescinded on the emergency cessation day.

We were advised during the briefing - and I want to thank everyone who gave us that briefing yesterday afternoon - that due to the provisions of this act being tied to the emergency cessation day, these regulation-making powers would effectively expire on the emergency cessation day and that regulation-making powers would no longer be able to be used. If this is correct, and we have no reason to believe it is not, there should be no objection to our amendment. The Greens are a bit wary about taking some of these assurances on trust after our experience with the first emergency powers bill, so I hope this amendment will be accepted.

Ms ARCHER - I am pretty sure I used this in my notes for summing up and I know we only have a few minutes left, so I just wanted to confirm the very basic principle I stated that it is not true that people other than the Governor can make regulations - for example, the director. That wording only allows administrative matters to be determined by those persons. This does not extend to making regulations themselves. For that to occur there would need to be specific wording to allow a subdelegation of legislative power as opposed to a subdelegation of administrative power, which is what section 32(b) gives. It is not an unusual provision. Clause 30(1) provides that the Governor can make regulations under the act. No other person can make regulations under the act and this is consistent with how regulation-making powers are set out in other legislation.

I went into this in more detail in my summing up and addressing this specific question that Ms O'Connor put during the second reading debate. I understand why she is moving this amendment but for the sake of brevity I will just refer to the comments that I made rather than read them all out regarding the reasons why the Government will not be supporting this amendment. Other than that I do not think I have anything further to say other than what I said in summing up.

Ms O'Connor - By interjection, in the interests of time-saving, perhaps you could confirm that these regulation-making powers will expire on the emergency cessation day.

Ms ARCHER - The reason is that there are some provisions in this, for example the taxi licences, that need to apply post this period. Some will not and some will.

Ms O'Connor - Sorry, back to the original question. Can you confirm that this clause 30 with its regulation-making powers will expire on the emergency cessation day?

Ms White - Not how long the regs will run for but the making of them.

Ms O'CONNOR - Not the extension of the regs.

Ms Archer - I think there is a misinterpretation here.

Ms O'CONNOR - It is the power to make the regulations under this act. Will they expire on the emergency cessation day?

Madam DEPUTY CHAIR - The time for the debate has expired.

Ms O'CONNOR - It is an extremely important question that the House should have had an answer to.

Madam DEPUTY CHAIR - Order. I am finishing my sentence. I will put the amendment -

Ms O'CONNOR - If the Attorney-General had just been able to say to us they expire on the emergency cessation day we would not be concerned. But my little alarm bells are going off. We are talking about the power, not the length the regulations will be in place. Do you know what I mean? Do you understand the distinction I am making?

Madam DEPUTY CHAIR - Leader of the Greens, I do not have any discretion. Are you asking for a division?

Ms O'CONNOR - We can avoid a division if the Attorney-General could please answer the question.

Madam DEPUTY CHAIR - The House has ordered that the debate end at 6.30 p.m.

Ms O'CONNOR - Attorney-General, you do not want to answer that question?

Ms Archer - It is not that I do not want to. There are forms of the House here. There is nothing I can do.

Ms O'CONNOR - All you have to say is, yes those powers expire on the emergency cessation day.

Ms Archer - Nothing is as straightforward as you make it seem.

The Committee divided -

 

AYES 7

Ms Butler

Ms Haddad (Teller)

Mr O'Byrne

Ms O'Connor

Ms Standen

Ms White

Dr Woodruff

 

 

NOES 9

Ms Archer

Mr Ferguson

Mr Jaensch

Ms Ogilvie

Mrs Petrusma (Teller)

Mr Rockliff

Mr Shelton

Mr Street

Mr Tucker

 

covid-19 disease emergency (miscellaneous provisions) bill (no. 2) amendments.pdf