Resumed from 10 November.
Comments and speeches by various members
HON ALISON XAMON (North Metropolitan) [2.49 pm]: I rise as the lead speaker for the Greens on the COVID-19 Response Legislation Amendment (Extension of Expiring Provisions) Bill 2020. Of course, we have already debated the substantive legislation in this place—the Criminal Code Amendment (COVID-19 Response) Act 2020 and the Emergency Management Amendment (COVID-19 Response) Act 2020—the provisions of which this bill seeks to extend. Those acts were passed in the early days of the COVID emergency. I remind members that at the time, our community was facing terrible health and financial risks and people were understandably deeply concerned. This Parliament stepped up to protect them as best it could in extremely difficult circumstances. We did the right thing by doing that. Of course, the legislation went through without the usual level of consultation and scrutiny that we would expect to undertake when introducing such extraordinary powers. That pace meant that members of the public had no opportunity to consider the substance of the bills or contact their elected representatives about any concerns. Suddenly, the bills were law and people faced substantial penalties for breaching those laws. This time the situation is different. Of course, the emergency is still the same but the laws are already in place and their sunset date is not until next year.
I am not concerned about the original sunset date in the legislation. At that time, 12 months seemed to be an appropriate length of time to look at these powers. At that point, none of us knew what we would be facing. I am not of the view that we need to be critical that an expiry date was originally forecast at a time when we knew that we would not necessarily be able to revisit it. I am glad that the expiry date is April next year because it means that we get an opportunity to revisit the legislation. I prefer that expiry date compared with the 18 months that was considered when the legislation was introduced. I am glad that we have a chance for further discussion, although I am concerned that once again debate is being curtailed and I am still not privy to all the information, even the information that I requested, relating to the impact of this legislation. I am therefore concerned that once again we are debating an important bill without having heard the voices of community members. The only voices that we are hearing are those of government members and advisers. We have received very little information about whether problems have emerged with the legislation that we passed in such a hurry way back in April.
The sunset date in the Criminal Code Amendment (COVID-19 Response) Act 2020 and the Emergency Management Amendment (COVID-19 Response) Act 2020 is 4 April 2021, and neither act contains transition provisions. When the sunset occurs in the Emergency Management Amendment (COVID-19 Response) Act, the power to make directions pursuant to section 72A will end as will any existing directions made under that section, as is appropriate. I accept that Parliament is unlikely to resume post-election to pass similar legislation before the sunset occurs; therefore, it is appropriate that we deal with this before Parliament rises.
The bill will simply extend the sunset date in the Criminal Code Amendment (COVID-19 Response) Act 2020 and the Emergency Management Amendment (COVID-19 Response) Act 2020 by six months. Hon Colin de Grussa has an amendment standing in his name on the supplementary notice paper, which proposes an alternative sunset date of 4 July 2021. I note that the Nationals WA moved similar amendments in the other place but they failed because the government opposed them. The Criminal Code Amendment (COVID-19 Response) Act 2020 was passed by this place without it going into Committee of the Whole House. That legislation temporarily increased the maximum penalty for two offences—serious assaults under section 318 and threats in certain circumstances under section 338B.
Section 318 deals with serious assaults against specified public officers, including public transport officers, ambulance officers and emergency officers. An offence in this category attracts a maximum penalty of 10 years’ imprisonment if the offender is armed or in company. Otherwise, the penalty is seven years. Under the act, the seven-year maximum penalty is raised to 10 years if the offender knew that they had COVID or if they create a fear, suspicion or belief that they have COVID. The usual defences and court process still apply and also applicable are some pre-existing features of section 318 that are opposed by the Greens—that is, the mandatory prison sentence in certain circumstances for offenders who are aged 16 years or over. Section 318 is a serious offence under schedule 2 of the Bail Act. There is a presumption against bail when a serious offence is committed while a person is on bail for another serious offence. The Greens remain concerned about anything that messes with judicial discretion. However, both of those things operate independently of the Criminal Code Amendment (COVID-19 Response) Act 2020. As I said, that act temporarily increases the maximum penalty that can be imposed at the discretion of the court in certain circumstances. I note that the government has not received any feedback from lawyers about how those provisions have been operating.
Section 338B provides for a maximum penalty of seven years’ imprisonment when the threat is to kill or, in circumstances of racial aggravation; otherwise, the maximum penalty is three years’ imprisonment. The Criminal Code Amendment (COVID-19 Response) Act 2020 temporarily raises the three-year maximum to seven years if the threat is to injure or endanger any of the public officers that I listed earlier. The usual defences and court process still apply. There is no mandatory minimum penalty. The usual bail process applies because unlike the section 318 offence, there is no presumption against bail. I understand that no-one has been charged under the temporary amendment to section 338B. The government has not received any feedback from lawyers about the operation of the provisions.
The Emergency Management Amendment (COVID-19 Response) Act 2020 introduced a number of changes but the one that we are concerned about is the 12-month sunset provision after royal assent, specifically as it pertains to section 72A. Section 72A allows directions to be given to individuals or classes of people when the officer considers it reasonably necessary to prevent, control or abate risks associated with a declared emergency situation or state of emergency. Therefore, section 72A does not only apply to the COVID emergency; it can apply to other declared emergency situations. The directions that can be made under section 72A include, but are not limited to, directions to provide relevant information as defined about oneself or a closely associated person. Some of the directions that have been made in relation to the COVID emergency pursuant to section 72A are listed in the second reading speech. They include the Closure and Restriction (Limit the Spread Directions), the Quarantine (Closing the Border) Directions, the Presentation for Testing Directions, the Isolation (Diagnosed) Directions and the Remote Aboriginal Communities Directions. Under those directions, we have become familiar with COVID testing, the absolutely appalling hotel quarantine regime, isolation and social distancing. We have also become familiar with intrastate travel restrictions. Those restrictions have now been lifted, except to remote Aboriginal communities. The sort of relevant information that we have become familiar with having to provide under directions includes information regarding our health and any recent travel, and for contact tracing purposes.
Clause 54 of the Closure and Restriction (Limit the Spread) Directions specifies that “relevant information” includes whether a person has completed a safety plan. As a result of an amendment made in this place when the Emergency Management Amendment (COVID-19 Response) Bill 2020 was debated in April, section 86 of the Emergency Management Act 2005 now includes a “reasonable excuse” defence. Section 86 has no sunset clause— good. This bill will not amend section 86 in any way.
I understand from information I received at the briefing and subsequently that there have been 36 arrests, 53 summonses, 201 infringements and 15 formal cautions. I note that neither informal or verbal cautions nor infringements issued or reviewed by a superintendent are being recorded. The nature of that review was not explained in the material that I received. I ask the minister to please explain the nature of that review and the outcomes of that review to date.
Hon Stephen Dawson: Can I just clarify which review?
Hon ALISON XAMON: Infringements that are issued are reviewed by a superintendent. The nature of that review was not explained in the material that I received following the briefing. I ask the minister to please explain the nature of that review and the outcomes of that review to date.
I note also that arrest is being used as a last resort. Most of the breaches related to failure to comply with hotel quarantine or self-quarantine arrangements. Up until 3 November this year, 104 charges relating to breaches of section 86 had been finalised. All charges were finalised in the Magistrates Court; none in the Children’s Court. Eight charges have been withdrawn and one charge has been dismissed.
The government has not been able to advise me whether any of the people charged or convicted had mental impairment issues. That was a specific concern that I had, and continue to have. The government was also not able to advise whether the reasonable excuse defence had been claimed for any of the charges; and, if so, the circumstances and the outcomes. Parliament is therefore debating this bill without knowing whether the people who are being impacted are people who live with mental impairment issues or whether the defence inserted by this Parliament on the last occasion is working as intended. The government advised it was not aware of any feedback from lawyers about people accused of the offences.
It is useful in this debate to remember that there is a distinction between the Emergency Management Act, the directions that are made under it, and the COVID response more broadly. The Emergency Management Act provides a source of power to make directions to respond to emergencies, including but not limited to the COVID pandemic. The content of directions made under that legislation, including whether they are validly authorised by the legislation, and if so whether they strike the right balance, is a different issue. A third issue is the COVID response more broadly, including all the legislation that has been passed. That includes that other source of direction-making power, the Public Health Act. I am talking about all the other measures and relevant matters, including but not limited to public messaging, testing people, testing sewage, contact tracing, training, drills, and the adequacy or inadequacy of the G2G PASS system, including the review process.
I want to make some comments about the Clive Palmer case. In that case, the High Court made a distinction between the legislative source of power and the directions made through the exercise of that power. As we know, the case has only very recently finished and orders were handed down on 5 November. The reasons for judgement, however, have not been handed down. It is unfortunate that this debate is occurring before parliamentarians have had an opportunity to consider those reasons. In answer to the question —
Are the Quarantine (Closing the Border) Directions (WA) and/or the authorising Emergency Management Act 2005 (WA) invalid (in whole or in part, and if in part, to what extent) because they impermissibly infringe s 92 of the Constitution?
A majority of the High Court held —
On their proper construction, ss 56 and 67 of the Emergency Management Act 2005 (WA) in their application to an emergency constituted by the occurrence of a hazard in the nature of a plague or epidemic comply with the constitutional limitation of s 92 of the Constitution ...
The exercise of the power given by those provisions to make cll 4 and 5 of the Quarantine (Closing the Border) Directions (WA) does not raise a constitutional question.
No issue is taken as to whether the Quarantine (Closing the Border) Directions (WA) were validly authorised by the statutory provisions ...
The source of power for making directions under section 72A specifically does not appear to have been considered in the Palmer case. As extraordinary as section 72A is, the Greens believe that it needs to continue.
When this place passed the two bills I have already referred to, which are the substance of this bill, it had only been a fortnight since a state of emergency and a public health emergency had been declared. It was hoped that by the time the sunset clause fell due in 12 months that the COVID crisis would have effectively passed. Unfortunately, seven months later, it is looking very unlikely that that will be the case. Given all of these circumstances, the Greens will not be standing in the way of extending the sunset clause at section 72A. The question is whether it should be until July, as proposed by the amendment on the supplementary notice paper, or until October, as proposed by the government.
The thing that bothers me more is that it is becoming clear that this state lacks an appropriate mechanism for monitoring and oversight of both the directions that are being made in exercising the extraordinary laws we have passed, and are now extending, and the COVID response more generally. As I said during last week’s motion on notice, the Greens want the directions and the COVID response generally to be strongly grounded in public health advice. As I also said during the last motion on notice, at the start of this pandemic the government did very well on transparency; everyone knew why the directions were being made and why the other measures were being taken. I think that is why they have been so broadly supported. Now, it is fair to say that in this state the monitoring and oversight of the exercise of these extraordinary powers or the COVID response more generally is not adequate. For example, as I said last week, unlike in Victoria, our Chief Health Officer is not directly addressing the public and he is not doing so in an unfettered way. Unlike some other jurisdictions, WA does not have a parliamentary oversight committee. In respect of this debate, we parliamentarians are not in possession of adequate information about how directions made under these laws are impacting people. I specifically asked about this at my briefing. I got some information; however, I have been unable to find out whether people with mental impairment are being charged with breaches of directions and I have been unable to find out whether the reasonable defence excuse is working as intended. In relation to the latter, I was told, according to my notes —
Specific information regarding whether the defence was claimed, and circumstances of the offending, is not provided. It is open to any persons to contact the Magistrates Court of WA to request access to the recorded court transcripts, that would need to be analysed to identify the relevant facts and issues raised in court.
The first question I have is: why is the government apparently not keeping detailed records of the impact of these extraordinary laws on people and whether the safeguards are even working? Second, how on earth did the minister expect me to obtain that information between my receipt of that answer, which was on Monday, and the debate now, particularly when only the executive, as the prosecutor, knows the names of all the parties so as to request transcripts? That is information I am not able to get hold of. I think that such a response to a parliamentarian seeking information about the impact of these extraordinary laws on vulnerable people within the community, before an urgent debate on extending those orders, is inadequate. It is disgraceful.
As parliamentarians, there are various levers we can use to obtain information, but as we saw with last week’s matter of public interest in the other place and again in last week’s motion on notice in this place, these debates can all too easily become politicised. That is not a desirable outcome. There is way too much at stake here to be playing politics. As has been said, people have already sacrificed too much, such as their liberty, their financial position, time with family and going to weddings and funerals, and they may well be asked to make more sacrifices in the future if there are outbreaks and community transmission of COVID in this state. This state needs a better monitoring and oversight mechanism. We need a joint standing committee. It is not acceptable that we are debating this bill without adequate information about how these extraordinary laws are impacting on vulnerable people in our community, particularly when debate happens so fast that those people will not have the time or opportunity to tell us that themselves.
I considered putting forward an amendment to this bill, but I made a decision to not move it at this point. I want members to be aware of the amendment that I seriously considered proposing. Effectively, it proposed the establishment of a joint standing committee comprising an equal number of members appointed by each house, and suggested that the functions and powers of the standing committee be determined by an agreement between the houses and not be justiciable. I decided not to proceed with the amendment at this point because, practically, it will not be able to be effected in any meaningful way. Parliament will be prorogued sooner rather than later, and I was concerned that if we looked at establishing such a committee now, it would effectively be dissolved before it had even started. My amendment ties in quite clearly with the amendment on the supplementary notice paper that proposes a three-month extension only. I suggest that we extend these extraordinary powers for another three months, as opposed to six months. If anyone on the opposition bench or even the government itself are interested, I say that if I am lucky enough to be re-elected to this place or, indeed, any other Green, that is exactly the sort of agreement I will be 100 per cent proposing if there is to be any further extension of these provisions. We may not have that oversight now, but if these extraordinary provisions are to be extended further than the additional three months that are being contemplated today, we need to ensure that that is done in conjunction with quite clear parliamentary oversight, with the terms of reference of that committee determined by both houses.
The Greens will allow this bill to pass, whether it is amended or not; however, we will support the amendment to extend these extraordinary powers by only an additional three months. These bills may not need to come back to us after that time, in which case it will have been right and proper for us to not contemplate extending those extraordinary powers longer than that three-month period. If, come next year, these bills do have to come back for a further extension, I propose that any members here who may be in the next Parliament may want to consider an additional amendment to incorporate an oversight committee. I give warning of that. It is something that a future government may want to consider and incorporate within any future bill, in which case I will not need to move such an amendment, but I think it is the only way that we can consider any further extension of these extraordinary powers. We have missed the opportunity for parliamentary oversight. That has proven to be problematic, but it is absolutely the case that if we continue to look at extending these extraordinary powers, particularly in the absence of clear information that has been specifically requested, we will need other mechanisms to try to ensure that we have ongoing oversight.
Comments and speeches by various members
The PRESIDENT: In accordance with the temporary standing orders dealing with COVID-19 business, the time limit for the second reading debate has ceased and I am required to put the question.
Question put and passed. Bill read a second time.
The Deputy Chair of Committees (Hon Matthew Swinbourn) in the chair; Hon Stephen Dawson (Minister for Environment) in charge of the bill.
Comments and speeches by various members
Committee interrupted, pursuant to standing orders.