Time Limits — Statement by Leader of the House
HON SUE ELLERY (South Metropolitan — Leader of the House) [2.39 pm]: I think it is appropriate that I make a statement about the maximum time limits. Now is the appropriate time to do that.
Earlier today, I consulted with all party leaders. I am setting maximum time limits for each stage of the Emergency Management Amendment (COVID-19 Response) Bill 2020. The second reading stage will be a maximum time of 80 minutes, Committee of the Whole will be a maximum time of 60 minutes, adoption of report will be five minutes and the third reading will be five minutes. For the benefit of the house, I will do this for each of the three bills on which I consulted leaders about setting maximum time limits.
Resumed from 31 March.
Comments and speeches by various members
HON ALISON XAMON (North Metropolitan) [3.16 pm]: I indicate that I am the lead speaker for the Greens on the Emergency Management Amendment (COVID-19 Response) Bill 2020, noting that the overall time to scrutinise this bill has been severely truncated. I only received a copy of this bill and a briefing on it yesterday, which was a very small amount of time to be able to deal with a bill that imposes some very serious and hefty penalties and curtails civil liberties. Having said that, I do recognise that we are dealing with extraordinary times. I note that the government’s motivation for pursuing this bill is that it is very strongly of the view that it will strengthen the state’s capacity to respond to the COVID-19 emergency.
What I am concerned about is the lack of sunset clauses within the bill. I share some of the concerns that were raised by some previous speakers. I think a more appropriate approach would have been to have sunset clauses for all the provisions so that at a later date, when we have more time, we could go through and truly ascertain whether the sorts of measures that are being contemplated in this legislation are fit for purpose in the long term. I recognise that we are currently in a state of emergency and that this is the first time that a state of emergency has been called in the history of Western Australia. We are certainly facing an unprecedented situation. I want to be very clear that this is not the type of bill that would ordinarily sit very comfortably with the Greens. The Greens have a long history of wanting to make sure that there are good and sound reasons for curtailing our civil liberties, and certainly when penalties are attached to that.
I want to respond to, and reflect on, some of the concerns that have been raised with me by members of the community. I particularly note those within the disability community who have contacted my office and me personally—I have a lot of friends with disability—to express enormous distress over the refusal of many members within our community to engage in either self-isolation or appropriate social distancing. They are particularly distressed about the cases of people diagnosed with COVID-19 who have been put into quarantine and then flagrantly breached those quarantine conditions. The cases are minimal but, nevertheless, they have occurred.
When we are trying to weigh up whether these sorts of measures are proportionate within the current environment, it has to be acknowledged that it is very easy for a person who is white, able-bodied and not homeless—for example, a person may be in a comfortable position and sitting on a sizeable inheritance—to make comments around civil liberties and how sad they are that they are not able to go to a friend’s house or sit on the beach. I remind those people that that is an incredibly privileged position to take. We have a responsibility as a community as a whole to make sure that we protect the lives of everybody within this community. It is the First Nation people, people who are homeless, disabled or living with compromised immune systems and older Australians who are at risk of not only having their civil liberties curtailed, but also losing their life. As has been previously said, surely that is the ultimate liberty: the liberty to remain alive. I have to balance these measures very carefully. What does it mean for us to take responsibility as a whole, as a community, collectively, to protect our vulnerable Australians at the same time as taking serious measures that curtail our civil liberties? Quite frankly, when people have been diagnosed with COVID-19 and are put into quarantine and then decide to breach that order, they are making the decision to put other people’s lives at risk. It cannot be said more strongly than that. That is what they are doing. They are basically saying that their desire to be out and about in the community is more important than somebody else’s desire to live. I have huge concerns with this and we need to be very clear about that. Having said that, we are in extraordinary times and I would have thought a bill such as the Emergency Management Amendment (COVID-19 Response) Bill 2020 would have been better placed to have far greater limitations around how it will be enacted both now and into the future. I share the views of other members and I would prefer to have a sunset clause in the bill.
I also recognise that we are giving enormous discretion to police officers. Many of our police officers are doing a really hard job and trying very hard to ensure that we have order and people are complying with the various public health initiatives that are coming through. I am also aware that the experience starting to emerge in other states is that there have been instances of police overstepping the boundaries and not being reasonable in the way that they operate under their new powers. We have to keep a very close eye on this. We need to ensure that this power is not abused and that people are not subjected to an onerous regime that is enacted in such a way that it is unfair and justice flies out the window in our efforts to ensure that people’s lives are saved.
I note that there are no mandatory penalties in this bill but the non-mandatory penalty for breach of a direction is increased to include 12 months’ imprisonment, which is a significant change.
I have a number of concerns with the bill. The amendment I have put on the supplementary notice paper has effectively been redrafted and adopted by the government. I thank the government for its goodwill in taking on that particular provision that marginally improves the bill. I am very concerned that clause 13, which amends section 86, contains no defence of reasonable excuse. The bill expands the ability to give directions broadly to classes of persons and places rather than individually, and for the publication of those directions. It is particularly important that we have that defence in there.
In particular, clause 12 provides that if a direction is not published in the manner that the minister considers appropriate, the direction is still valid. I received assurances at the briefing that the minister who would be responsible for publishing has an appetite to ensure that these are published. But we are here to pass legislation and we cannot simply look at who is responsible for enacting this legislation. We need to consider the black letter of the law and make sure that it is fit for purpose. I am concerned we could well have a situation whereby a direction is not published, whether it be a deliberate decision not to, by default, a time lag or whatever, and somebody does not comply and finds that they are subject to a penalty. Although I completely agree that giving directions broadly to classes of persons and places rather than individually is absolutely necessary in the current circumstances, we need to remember, as we have seen happen, that these directions are changing all the time. They are changing on a daily basis and sometimes they change back and forth. I use as an example what happened with the directions around hairdressing. At any given point we had hairdressers and clients trying to comply, but the directions were changing constantly. I am expecting to see more of that, not less, because we are on the run. We are trying to deal with a major pandemic. However, this increases the risk for error. When an error occurs, we run the risk that people will fall foul of the law without meaning to. We are talking about a global pandemic with different jurisdictions doing different things, not just in Australia but around the world, so there is a huge amount of social commentary. Unfortunately, that means a wealth of misinformation as well as correct information is available. I am concerned that in those circumstances it is entirely possible that a person does not comply with a direction because they did not know it existed or were mistaken about something as simple as its commencement time. That could happen for a number of reasons. It could be because their ability to access reliable and up-to-date media is limited. Newsflash: not everybody has the internet at home. It may happen because they took advice from the wrong person. An example is someone from a culturally and linguistically diverse background taking a direction from a child who may have that wrong. It could be because they simply do not understand that direction. Again, that may be because of language, some sort of mental or cognitive impairment or because they did not understand that the directions were compulsory. I acknowledge that as we go deeper into this crisis, it is less likely that that will be the case for a lot of people. Although ignorance of law is never an excuse, people may not have complied for a variety of reasons. For example, a lady at the beach with her children may be told to leave but she may not be able to leave immediately because she still needs to gather up her children. She may be told that she has not complied because she has not left straightaway. Perhaps that same woman, at a later date, will be able to avail herself of the reasonable excuse. I do not know whether that is the case; it would be up to the courts to determine, but I can think of scenarios in which people intend to comply but, for a range of reasons, are not able to comply immediately or may have a reasonable excuse to not comply at all. This is particularly a concern because clause 2 backdates the commencement of the power to give directions to classes of persons, without the usual publication processes, to 16 March this year.
We know that two weeks ago public messaging was far from optimal, and I am sure the government would acknowledge that. I am not pointing the finger at anyone. We are trying to deal with this on a day-to-day basis. A lot of people were very confused, and a lot of people still are, to be honest. The last two weeks have been a really steep learning curve for everyone. As I said, in this country the directions, frankly, have been changing all the time. Everything is changing. The number of people allowed to gather together keeps changing. It is not okay for this bill to make it lawful to prosecute people just because they cannot keep up with the latest directions, especially when many people at the moment are preoccupied with how on earth they are going to feed themselves and their families. If we were to take the law as it is written at the moment, it would enable, for example, a retrospective prosecution of everyone in the Centrelink queue two weeks ago who was not socially isolating. Those people had just lost their jobs and were utterly preoccupied with what the future was going to hold for them. I understand that assurances have been given that of course the law is not going to be exercised in that way, but that is what the law enables. This is the sort of disquiet I bring to deliberations on this bill. I would have much preferred that we simply had a bill enacted as of now, because I do not understand why we would have retrospective provisions unless there was an intention to exercise them. I would like to get an answer about why they are being pursued, unless, of course, they are intended to be used, in which case I would like to know who is being pursued. Has a database been kept of people who will now retrospectively be fined? Why is it there?
Getting back to the issue of the sunset clause, as has already been pointed out by previous speakers, a sunset clause is effective 12 months after assent day for proposed section 72A only. Proposed section 72A allows directions to be given to individuals or classes of people that the officer considers reasonably necessary to respond to the emergency, and that includes directing people to provide information about their own or a close associate’s personal details, whereabouts, state of health, any recent travel and whom they have been in contact with, as well as other information prescribed by regulations. I point out that self-incrimination is not a defence, but no criminal proceedings can be brought against a person for information that has been provided in compliance with the direction as long as it is not knowingly false or misleading. I note that none of the provisions in the bill are narrowed to apply to COVID-19 specifically, save that the electronic monitoring provision applies only to people who are in quarantine. All of the bill’s contents apply equally to other declared emergencies, which are quite likely to happen at some point over the next 12 months, because we are talking about things such as bushfires, cyclones, floods or any other state of emergency in the future for that matter. Again, this is a reason why reasonable excuse needs to be available as a defence for a breach of a direction. During the bushfires earlier this year, we saw that communications may be down; in fact, that is quite common. A person who behaves in a manner contrary to a direction may simply be uninformed or incorrectly informed, and certainly not wilfully trying to disobey directions.
I have a range of concerns about this bill. This is not the sort of bill that I think is desirable to be brought to this chamber for consideration in such a short time. I am glad that an additional defence has been incorporated. I think it improves the bill and makes it easier to support. I am very concerned about the retrospective provisions and I want to know how they are going to be employed. I am also very concerned about the lack of sunset provisions in this bill. It is a very serious matter to subject someone in quarantine to electronic monitoring. Having said that, it is also an incredibly serious matter if someone has COVID-19, is in quarantine, chooses to ignore it and puts people’s lives at risk. This is the wicked dilemma we are faced with. In an ideal world, people would do the right thing. In an ideal world, people would recognise that everyone’s life matters—whether they are a person with a disability, an older Australian, someone with compromised health issues, a First Nation person or a homeless person, they matter. I cannot help but note that some of the biggest complaints about the imposition on civil liberties come from people who do not have any skin in the game, who do not have people they love potentially going to die and who have good safety nets available to them. That is the difficult situation we face. I am very keen to see whether there will be a further amendment that gives an overall sunset clause. I think it would be better if we were able to consider these provisions and their implications in a more fulsome way without the threat of having to respond to this dreadful situation hanging over our heads.
Comments and speeches by various members
Progress reported and leave granted to sit again at a later stage of the sitting, on motion by Hon Stephen Dawson.