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COVID-19 Disease Emergency (Miscellaneous Provisions) Bill (No. 2) 2020 - Second Reading

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 2nd Reading: Cassy O'Connor

 

Ms O'CONNOR (Clark - Leader of the Greens) - Madam Speaker, I rise to make a contribution on the COVID-19 Disease Emergency (Miscellaneous Provisions) Bill (No. 2) 2020 and indicate from the outset that we have a range of amendments that we will be putting and we will need to go into Committee in order to do that.

In broad terms we are prepared to support this legislation, as we were prepared to support the first COVID-19 emergency legislation, but we have made clear we will not be a rubber stamp for legislative overreach. Even in a pandemic you need to make sure that legislation is robust, reasonable and properly scrutinised. There is no question that the first piece of legislation that went through this place on 26 March was not properly scrutinised because we did not have time to properly scrutinise it because we received the bill one hour before parliament met for the day, so Dr Woodruff and I are somewhat more wary this time.

In my contribution on that legislation I made it very clear that we are here to be a constructive, cooperative and supportive part of the emergency response. We do stand elbow to elbow with the Premier and Leader of the Opposition and every member of this place in representing our communities, making sure they understand that we are a unity ticket on their future and on the need to save lives, and that has required very significant powers to be given to government.

As I was reading through this second piece of legislation I kept having to remind myself of the promise that the Premier made to the parliament in that last debate when it became clear to him there was a level of legislators' distress about the situation we had been put in and the enormous powers we were giving to government. The Premier said at that time, 'I will not abuse your trust.' We still hold him to that.

These powers that we are giving to government are arguably the most sweeping powers the Tasmanian Parliament has given to any government since World War II. We are giving powers to make regulations without proper scrutiny. We are giving powers to override planning laws and to affect the way courts operate. We already have powers in the Public Health Act than can very significantly impact on the lives, rights and privacy of everyday Tasmanians and that is why it is so important that when we are dealing with legislation like this we run a very careful comb over it. That is what we have done with this bill, which was an opportunity we did not have with the last bill. Just on a personal note, I found that the most difficult legislative process in my nearly 12 years in parliament and since that day have had cause to reflect on how it might have been done differently, but anyway, that was then and this is now.

When the first legislation went through this place I was having a look at the second reading speech delivered by the Premier. He said in that speech that as at 24 March there were 36 confirmed cases of COVID-19. We are now five weeks on from that and there are 219 confirmed cases, 12 people have lost their lives; there has been a significant outbreak in the north-west of Tasmania and this has impacted on the lives of thousands and thousands of people. As we know, there are 12 family and friend groups in our community right now who are utterly heartbroken. Dr Woodruff and I extend our deepest sympathy to those families and acknowledge that because we are such a small island, those deaths will be felt right across Tasmania. One of our own members in this place is related to people who lost their lives in the north-west of Tasmania.

We are in extraordinary times and it has provided the impetus for some sweeping powers to be given to government. I truly believe that those powers right now are being exercised responsibly and Premier Gutwein is being his best self and doing everything within his capacity to keep Tasmanians safe, but it does not mean that we as legislators are a rubber stamp for any legislative overreach.

There are significant parts of the bill with which we have no issue at all. I will ask some questions of the minister on the way through.

The first amendment we have prepared was an issue we raised in the briefing yesterday, and I am pleased to hear that it was unintentional. When I asked at the briefing yesterday about why there were two definitions of an emergency cessation day, I formed the understanding that it was intentional and that one related to the public health emergency and the other related to the devastating economic fallout of this pandemic on the island. I need the Attorney-General to confirm the amendment that she foreshadowed at the end of her second reading speech will be to Part 3, interpretation, where 'emergency cessation day' is described as meaning the day declared under section 17(1) to be the emergency cessation day, and that the amendment will also include removing clause 29 in Part 9, in which the emergency cessation day was going to be very arbitrary. It was to say -

(1) The Minister, by notice, may declare a day to be the emergency cessation day.

(2) The Minister may only declare under subsection (1) a day to be the emergency cessation day if he or she is reasonably of the opinion that the risks related to the disease, and the deleterious economic effect of such risks, have sufficiently reduced, so that it is reasonable to declare a day to be the emergency cessation day.

In the act that we passed in haste here towards the end of March, the declaration of an emergency cessation day was contingent on the Director of Public Health advising that the public health emergency was over. There was no reason whatsoever for there to be two definitions of an emergency cessation day. I hope the Attorney-General's foreshadowed amendments correct the interpretation section of the act as well as bring section 29 into line with the first COVID-19 legislation we passed in here.

We recognise the need to not only delay the Legislative Council election but to make sure that the term of Council members is extended and that the term that will be filled by the next members for Huon and Rosevears will be shortened in order to bring it into line with the usual rotation of upper House elections. Dr Woodruff wrote to the Attorney-General about the need to delay the Legislative Council elections and we are pleased this has taken place. There is an obvious question that arises, given that there is a provision in the legislation in clause 8, when the 2020 election is to be held, which says:

(1) The Governor may, under section 19(4) of the Constitution Act 1934, appoint by proclamation in behalf of the 2020 election a Saturday in a month before 31 December 2020.

It is possible that physical distancing requirements will still be necessary in December this year. I am interested in the Attorney-General's thinking on how you might conduct any election if physical distancing is still required. That is, if those circumstances that we are experiencing now are still in place to some extent which would mean having people attending polling booths and having Tasmanian Electoral Commission staff being in close contact with each other in order to count votes. Would it be possible to have Legislative Council elections in those circumstances, and whether the Government is doing any further thinking on a postal ballot for Legislative Council elections?

It also raises the issue of parliament's ongoing operation. I have written to the Premier and copied it to the Leader of the Opposition with advice that we sought from the Clerk in relation to any impediments that there may be to parliament being able to meet remotely. It did not seem to me that those impediments were insurmountable other than the question over whether, under the Constitution Act, we are in fact present when we are meeting remotely. I urge the Attorney General to seek advice from Crown Law about that aspect of the advice that I forwarded to the Premier - whether there are any legal impediments to parliament being able to meet remotely, debate remotely and vote remotely. We should have the flexibility to do that.

I understand that in the first COVID-19 act that we passed where a provision was made that enabled, for example, local governments or councils and other statutory bodies to meet electronically. My understanding is that would give the premier of the day some powers potentially to bring parliament to meet electronically. Once you have the Executive directing when parliament can and cannot sit and taking over determining parliament's direction I think you are heading into some dangerous territory and this should be a matter for the parliament itself to resolve.

We have some issues with the amendments that are made to enable the functions of the Tasmanian Health Service and particularly what would appear to be a blank cheque, to some extent, being given to the Tasmanian Health Service to enter into contracts and arrangements with public funds that are not subject to and that are not consistent with the Ministerial Charter that is not specified or is inconsistent with the service plan enforced from time to time.

But for this section, that otherwise not be authorised under the act and presumably that also means those contractual powers that we are talking about giving to the Tasmanian Health Service during the emergency period would also not be subject to the Treasurer's Instructions. It is hard for us to understand why there would need to be this provision in statute and whether there are any constraints on the amount of funding that the THS can enter into a contract or arrangement over. We have an amendment specific to that provision to deal with our concerns and it would simply give the Public Accounts Committee some capacity to oversee large spending decisions being made by a government agency which is funded by the people of Tasmania.

We have no issue with the changes to the Taxi and Hire Vehicles Industry Act and the Vehicle and Traffic Act of 1999. However, when you look at the first page of this legislation which includes those two statutes I just talked about, you can see that this bill amends and, in some cases permanently, eight pieces of legislation in Tasmania and none of these changes have been put through a consultation process or have gone out to stakeholders. That is why an abundance of caution is required despite the circumstances we are in. Again, we are handing to government extraordinary and sweeping powers. When I say 'government', I not only mean the Premier and the ministers but also, for example, the State Controller, the Director of Public Health and other bureaucratic entities who under this legislation would be empowered to make regulations. We find that somewhat problematic.

In Part 6, the extension of statutory time lines, this relates in part to a question that Ms White asked. The relevant licensing act means and that is why I think that this list of instruments is the definitive list of instruments that are affected by this clause but I seek the Attorney-General's assurance that this amendment does not, for example, allow the Treasurer to extend a gaming licence for a gaming operator or a casino. That would be hugely problematic if that were the case given that this is a matter of very significant public interest but also very significant impact on the lives of people of Tasmania to the year 2043.

The changes to the Emergency Management Act have prompted us to draft a couple of amendments. I take this opportunity to acknowledge the integrity, the heart and the work ethic of Commissioner Darren Hine in his role as state controller. As a Tasmanian who loves this island and its people, it has been very reassuring to know that Darren Hine is the state controller. I have a short anecdote here about Mr Hine in senior public service circles. It used to be the case that if there was an ethical dilemma experienced at the upper echelons of the bureaucracy, the question secretaries might ask themselves is, 'what would Darren do?'. I can certainly see why that would be the case.

We had a briefing with Commissioner Hine a few days ago and it was a really open conversation about the role that Tasmania Police is playing in keeping the community safe but also enforcing directions, orders and the rules that have come about as a result of the emergency declaration. As someone who grew up in Joh Bjelke-Petersen's Queensland which was a police state, who has a very innate distrust in some ways of law enforcement, I am really encouraged by

the culture and practice of Tasmania Police under Commissioner Hine every day of the week, but I am particularly heartened by his approach in this really difficult time. It does not, however, mean we should hand to Tasmania Police or any law enforcement agency enormous powers without putting some brakes on those powers.

There is an argument for Tasmania Police to be able to hand out on-the-spot fines, but again this is a significant change to police practice and as I recall one of the permanent changes in the legislation. It is a change that has come about without reference to stakeholder organisations and public consultation, so while we support it during the emergency period we believe those powers should expire at the expiry of the emergency period. If we need to bring those powers into statute permanently that is something we can do a little further down the track if it is demonstrated that this power we are giving to police is needed in the longer term.

In relation to the amendments to the Public Health Act, we accept that having the Director of Public Health need to renew the emergency declaration every seven days places a significant and arguably unreasonable administrative burden on the director and on that basis we support bringing the declaration into a 12-week period which is in line also with the State Controllers' powers in that area.

I am very interested to explore with the Attorney-General clause 27 in relation to evidence, just wanting to understand exactly what this clause would mean in real-life application in a court process. During the briefing yesterday when I asked if this amendment would have any implications for the Evidence Act the answer was no. If an evidentiary test is being rewritten or potentially changed in response to an emergency I believe the parliament needs to understand why and under what circumstances that new evidentiary test would be used. What is the genesis of this proposed amendment?

I will just move past clause 29, hoping that it will be deleted.

I come now to the enormous power that this legislation would give various authorities in government to make regulations. Parliament decided in the last sitting that we were not going to return until 18 August and the public record shows we all supported that. I am not shying away from that at all. We all supported it and as the Premier said this morning, we were all fearful because we are in the grip of a disease that medical professionals and scientists are still trying to wrap their heads around in order to understand. It is highly contagious, it is lethal and there are a number of people in this building who would be classified as high risk. We made the decision not to return until 18 August, but since then a number of elements of our situation have changed.

To a measure of an extent we understand the outbreak on the north-west coast means there have been strong measures put in place which prevent cruise ships like the Ruby Princess from docking and disembarking. We have strong border quarantine measures in place, which I have to say on the evidence will be in place for the foreseeable future. As a parliament we also have found a way to meet effectively. We can practice physical distancing in the Chamber and there are fewer staff in this building, therefore the risk is minimised. I do not believe it is eliminated but it is minimised. Therefore we have agreed as a parliament that we can meet and if the Government wants to bring in extra legislation or regulations as is provided for in this clause, that is what parliament is here for.

I am really uncomfortable, and I believe every member of this place should be really uncomfortable, with giving government ministers, secretaries, the State Controller, the Director of Public Health and any other senior public servant the power to make regulations when parliament may not be sitting. When there are questions over the Subordinate Legislation Committee's capacity to, in real time, examine and advise government on measures it has taken, we should be very wary of giving the Executive and unelected officials the power to make regulations that impact on the lives of the people of Tasmania and in many cases restrict their rights and freedoms. That has been done to this point to save lives. We understand that, but the Attorney-General, with the greatest respect, did not make the case for this clause. We cannot see why it would be necessary to include in the legislation to expand the regulatory powers of the Executive and unelected public servants. As excellent human beings that administrators they may be, such as Darren Hine and Mark Veitch, we should not be delegating the power to make regulations to those bodies.

The Director of Public Health has extraordinary powers already and in fact many of the strong powers which are being used in this emergency period did not come from the first COVID-19 bill; they were already there in the Public Health Act and the Emergency Management Act. There is a whole suite of hefty powers already in place and this strikes us as overreach. We are concerned about it and again I want to flag that we have an amendment that would provide for regulations made under this provision to expire at the expiry of the emergency period; that is on the emergency cessation day.

I want to go to another couple of issues. The suspension of the Personal Information Protection Act in the original legislation appears to us to be a permanent suspension. As the Attorney-General said before, everyone in government is no doubt working 20 hours a day, seven days a week. The Office of Parliamentary Counsel has had a huge load on their plate and so there will be unforeseen errors or inconsistencies in the legislation that comes before us at a time like this. Our very clear understanding when the Personal Information Protection Act provisions were suspended during the emergency in the last piece of legislation was that it would only be for the period of the emergency. The problem is, when you have a look at the old legislation, that is not clear.

There are a number of other issues I will raise in Committee. One is the need for the Subordinate Legislation Committee to muscle up a bit and to have the Greens on it but I look forward to the Attorney-General's response to the questions we have raised.

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