Highlights of Extension of Emergency Powers Bill from 30th April -30th Oct 2022
Highlights of Extension of Emergency Powers Bill from 30th April -30th Oct 2022
As Queensland transitions to living with COVID-19, some restrictions may still need to be maintained or activated, such as mask wearing in areas of increased community transmission and vaccination requirements for high-risk settings. Recent events like the emergence of Omicron, and the Delta variant before that, serve as a clear reminder of how rapidly COVID-19
1 Additional amendments and modifications were made by the COVID-19 Emergency Response and Other Legislation Amendment Act 2020 and the COVID-19 Emergency Response and Other Legislation Amendment Act 2021.
2 For example,section 94 B of the Local Government Act 2009, which provides that a local government may decide rates and charges for the 2021 -2022 financial year at a meeting other than the local government’s budget meeting, expires on 30 June 2022. This amendment, and a similar amendment to the City of Brisbane Act 2010, was made by the COVID-19 Emergency Response and Other Legislation Amendment Act 2021.
Achievement of policy objectives
Extension of expiring public health provisions
The Bill achieves the policy objectives by extending essential public health measures required to support Queensland’s response to the COVID-19 pandemic until the COVID-19 public health legislation expiry day, which is defined as the day on which the COVID-19 emergency is ended by the Minister under section 324(1) of the Public Health Act or 31 October 2022, whichever is earlier. In particular, the Bill will extend all temporary amendments to the Public Health Act, including to:
• increase powers for emergency officers and the Chief Health Officer to limit, or respond to, the spread of COVID-19 in Queensland, including by issuing directions to require physical distancing, restrict movement and gatherings, require people to quarantine or self- isolate and implement other containment measures;
• authorise the sharing of confidential information for contact tracing;
• encourage compliance with quarantine requirements and other public health directions by
Page 3
Public Health and Other Legislation (Extension of Expiring Provisions) Amendment Bill 2022
providing appropriate penalties for contraventions;
• increase the period for which a regulation may extend a declared public health emergency from seven to 90 days;
• enable fees to be charged for costs associated with the mandatory quarantine of persons in government-arranged accommodation; and
• protect personal information collected for contact tracing.
Extending the temporary legislative framework in the Public Health Act until the COVID-19 public health legislation expiry day will ensure the Chief Health Officer can continue to apply any of the existing public health measures that may be necessary beyond 30 April 2022. This may include measures in response to new variants that emerge and management of health system capacity. The discretionary nature of the Chief Health Officer’s powers under the Public Health Act provides significant flexibility in relation to the public health responses appropriate to manage the COVID-19 pandemic, including not using the powers if the risk does not warrant a response.
The Bill also amends the Acts Interpretation Act 1954 to include the new defined term COVID-19 public health legislation expiry day, as the term is used in a number of Acts extending COVID-19 public health measures. The COVID-19 public health legislation expiry day is defined by reference to section 315 of the Public Health Act, that is, to mean the day the COVID-19 emergency ends under section 324(1) of the Public Health Act or 31 October 2022, whichever is earlier. Under section 324(1) of the Public Health Act, the Minister must end the declared public health emergency if the Minister is satisfied the declaration is no longer necessary to prevent or minimise serious adverse effects on human health.
The Bill also extends amendments to the Corrective Services Act 2006, Disaster Management Act 2003 and Mental Health Act 2016 to support the public health response.
the Bill will extend all temporary amendments to the Public Health Act, including to:
• increase powers for emergency officers and the Chief Health Officer to limit, or respond to, the spread of COVID-19 in Queensland, including by issuing directions to require physical distancing, restrict movement and gatherings, require people to quarantine or self- isolate and implement other containment measures;
• authorise the sharing of confidential information for contact tracing;
• encourage compliance with quarantine requirements and other public health directions by
Public Health and Other Legislation (Extension of Expiring Provisions) Amendment Bill 2022
providing appropriate penalties for contraventions;
• increase the period for which a regulation may extend a declared public health emergency from seven to 90 days;
• enable fees to be charged for costs associated with the mandatory quarantine of persons in government-arranged accommodation; and
• protect personal information collected for contact tracing.
Disaster Management Act 2003
The Disaster Management Act provides for a range of powers (declared disaster powers) that may be exercised for a disaster situation by persons authorised under the Act, including police officers. The declared disaster powers, which include the power to close a road to traffic, have been used throughout the pandemic where necessary to operationalise the Government’s response to the COVID-19 emergency. Accordingly, the Bill extends the expiry of part 12A of the Disaster Management Act to:
• provide that the declared COVID-19 disaster situation may be extended by regulation for up to 90 days, instead of 14 days as is ordinarily required by the Act to provide greater certainty about disaster arrangements in relation to the COVID-19 emergency (section 138); and
• set aside the entitlement to compensation for loss or damage suffered as a result of the exercise of powers under the Disaster Management Act related to the COVID-19 disaster situation (section 138A).
While the modification framework and extraordinary regulation-making powers under the COVID-19 ER Act will expire on 30 April 2022, clause 14 of theBill extendsthetransitional regulation-making power. Further extending the application of the transitional regulation-making power may be considered a breach of the fundamental legislative principle that legislation should have sufficient regard to the institution of Parliament.
This potential breach is justified as continuing a transitional regulation-making power is an important safeguard to ensure legal and commercial certainty in transitioning back to normal operations. As the COVID-19 emergency has been unprecedented and the extraordinary regulation-making and modification framework in the COVID-19 ER Act has been used across portfolios, the exact nature of transitional arrangements may not be immediately clear. The transitional regulation-making power is limited to matters necessary to transition from an expiring associated COVID-19 measure to normal operations.
Disaster Management Act 2003
Extended period of declared disaster situation
Clause 17 of the Bill has the effect of continuing amendments in the Disaster Management Act that enable a declared disaster situation to be extended by regulation for a longer period (90 daysinstead of 14 daysas ordinarily required by theAct). The declaration of a disaster situation empowers authorised officers to undertake certain actions or compel others to undertake or refrain from certain actions. This includes controlling the movement of persons, entering places, removing or destroying animals, vegetation, vehicles and structures, and closing roads to traffic. Accordingly, these amendments raise considerations as to whether the legislation has sufficient regard to the rights and liberties of individuals (section 4(2)(a) of the Legislative Standards Act). This includes, for example, whether the legislation:
• makes rights and liberties, or obligations, dependent on administrative power only if the power is sufficiently defined and subject to appropriate review;
• allows delegation of administrative power only in appropriate cases and to appropriate persons; and
• confers power to enter premises, and search for or seize documents or other property, only with a warrant issued by a judge or other judicial officer.
The powers of authorised officers are discretionary and, will only be exercised in circumstances associated with the COVID-19 disaster situation, where the powers are necessary for public safety and the protection of life or property. Authorised officers are limited to those with the necessary expertise or experience to exercise the powers, and authorisations may be limited or given on conditions specific to the particular circumstances of the officer or event. The power to give directions about property includes the requirement that, if the property is residential or business premises, directions may only be given with the written approval of the relevant district disaster coordinator (section 78 of the Disaster Management Act).
Accordingly, while the exercise of these disaster powers has the potential to impact on the rights and liberties of individuals, any breach is justified,
It is appropriate and necessary that a disaster declaration may be extended by regulation, rather than by an Act of Parliament, to ensure the ability to respond at short notice to the evolving situation and allow the Government to fulfil its responsibility to protect the health and safety of the Queensland community.
Compensation for loss or damage suffered under the Disaster Management Act
The extension of the retrospective amendment to the Disaster Management Act to set aside the right to compensation raises the fundamental legislative principle that legislation should provide for compulsory acquisition of property only with fair compensation and that rights and liberties should not be adversely affected, or obligations imposed, retrospectively (sections 4(3)(g) and (i) of the Legislative Standards Act).
The exercise of the disaster powers available under the Disaster Management Act has the potential to result in loss or damage to a person to whom a direction is given. Should this occur, the amendments will have the effect of setting aside the right to make a claim for fair compensation. This breach is considered justified as, due to the extensive economic impacts of the COVID-19 emergency, uncapped and unpredictable compensation claims for damage and loss suffered may place further economic pressure on the State and diminish the stimulus measures being implemented by the Queensland Government.
The Australian and Queensland Governments have provided substantial economic assistance packages to mitigate the loss and damage suffered by individuals and businesses due to COVID-19 includ ing JobKeeper and JobSeeker payments issued by the Australian Government. The Queensland Government has provided more than $14.2 billion of initiatives across the State to drive economic recovery and create jobs. The provision of stimulus packages
Page 10
Public Health and Other Legislation (Extension of Expiring Provisions) Amendment Bill 2022
has supported the State recording positive growth conditions, which will provide for a quicker post-pandemic economic recovery.
Public Health Act 2005
Extension of duration of powers of the Chief Health Officer
Clause 26 of the Bill extends, until the COVID-19 public health legislation expiry day, the powers provided under the Public Health Act that allow the Chief Health Officer to issue:
• a direction restricting the movement of persons;
• a direction requiring persons to stay at or in a stated place;
• a direction requiring persons not to enter or stay at or in a stated place;
• a direction restricting contact between persons;
• any other direction the Chief Health Officer considers necessary to protect public health.
The Bill may potentially breach fundamental legislative principles as it delegates powers to make directions to the Chief Health Officer. Such an approach may be considered a delegation of powers, the exercise of which has a potentially significant effect on individuals’ rights and liberties (section 4(3)(c) of the Legislative Standards Act).
It is considered the impact on the rights and liberties of individuals is justified,
Extension of emergency powers provided to emergency officers
When a public health emergency is declared, emergency powers can be exercised by emergency officers under chapter 8 of the Public Health Act. Emergency officers may enter premises, seize items and exercise other powers.
Emergency officers are appointed by the chief executive (Director-General of Queensland Health or their delegate) and must be public service officers or employees, health service employees, persons employed by a local government, State Emergency Service members or other persons prescribed by regulation, such as police officers. A public health direction issued by the Chief Health Officer takes precedence over a direction by an emergency officer in the case of any inconsistency.
Extension of duration of detention powers for emergency officers (medical)
Clause 26 of the Bill does not change or increase the detention powers of emergency officers (medical) in any way other than to extend the duration of when the powers may be exercised until the COVID-19 public health legislation expiry day. The powers provided to emergency officers (medical) may be required to direct persons entering Queensland to quarantine for a certain period of time upon arrival to limit the potential spread of COVID-19 in the community.
Appropriate safeguards are in place to protect the rights of individuals. For example, under section 361 of the Public Health Act, a person may apply, through their lawyer or another nominated person, to a magistrate to order the end of the detention order made by the emergency officer (medical).
Proportionality of penalties for breaches of the Public Health Act
The Legislative Standards Act does not explicitly provide a fundamental legislative principle for offence provisions. However, a new offence must be appropriate, proportionate and reasonable in light of the conduct that constitutes the offence. Clause 26 of the Bill extends section 362D of the Public Health Act, which provides for the enforcement of public health directions issued by the Chief Health Officer, until the COVID-19 public health legislation expiry day. It is an offence, carrying a maximum penalty of 100 penalty units or 6 months imprisonment, if a person does not comply with a public health direction unless the person has a reasonable excuse. Comparably, existing section 351 of the Public Health Act applies to the enforcement of a detention order issued by an emergency officer (medical). It carries a maximum penalty of 200 penalty units, to fail to comply with a detention order.
It is considered that the ability to impose immediate fines will act as an appropriate deterrent against non-compliance. The policy objective of continuing these amendments is to readily enforce non-compliance of directions made by the Chief Health Officer and emergency officers by enabling certain offences to be enforced through penalty infringement notices.
While the penalty provisions provide the maximum penalty units applicable, in practice an escalating compliance framework is used by enforcement officers with the level of enforcement action being dependent on the seriousness of the breach and/or the likelihood of the alleged non-compliance continuing. For example, less serious breaches are often resolved through education or oral and written warnings of non-compliance, with prosecution being used as a last resort in the most serious cases.
Quarantine fees
The charging of quarantine fees may be considered to infringe on the rights and liberties of individuals, in particular, with regard to whether the legislation provides for the compulsory acquisition of property only with fair compensation (section 4(3)(i) of the Legislative Standards Act). The potential infringement is considered justified as it is necessary to charge fees for the services provided to a person required to quarantine in a place other than a person’s home to ensure that a clear mechanism is in place to sustainably manage the costs associated with quarantine.
There are opportunities for vulnerable people and people experiencing significant financial hardship to apply for a full or partial waiver of fees, and payment plans can be agreed to limit the impact of the requirements.
Declaring a public health emergency
Clause 31 of the Bill continues the power of the Governor in Council to make a regulation to extend, or further extend, the period of a declared public health emergency for a period of up to 90 days, instead of seven days as ordinarily required by the Act. Extending the period of a declared public health emergency enlivens the powers of the Chief Health Officer and emergency officers under chapter 8 of the Public Health Act. Given the extensive powers that come into effect when a public health emergency is declared or extended, this provision may be inconsistent with the fundamental principle that legislation is consistent with principles of natural justice (section 4(2)(b) of the Legislative Standards Act) and whether the legislation has sufficient regard to the institution of Parliament (section 4(4) of the Legislative Standards Act).
It is appropriate that this power is contained in regulation, rather than in primary legislation, given the need to respond swiftly to manage the ongoing public health risks
The Public Health Act continues safeguards on the regulation-making power. The provision in clause 31 means the power to make a regulation to extend the public health emergency by up to 90 days will cease on 31 October 2022. Additionally, if the Minister becomes satisfied it is no longer necessary to exercise emergency powers to respond to COVID-19, the Minister must end the declared public health emergency and make a written record of the time and date that the declared public health emergency ends. The Bill does not itself extend the declared public health emergency. The extension of the declared public health emergency can only be achieved through the Governor in Council making a regulation to extend the declared public health emergency under section 323 of the Public Health Act. This ensures that a regulation to extend the declared public health emergency will sufficiently subject the exercise of delegated legislative power to Parliamentary scrutiny.
Consultation
Targeted consultation was undertaken with key stakeholders on the policy proposal to further extend those aspects of the COVID-19 legislative framework directly related to the public health response to 31 October 2022. Stakeholders consulted included key representative bodies from the health, tourism, business, legal, hospitality, entertainment, gaming, aged care and disability sectors.
Stakeholders were generally supportive of extending the public health COVID-19 measures proposed in the Bill. Only one stakeholder provided feedback that was not supportive of the proposed extensions beyond 30 April 2022, on the basis there was insufficient justification for the restrictions on the community’s freedoms.
The extension of the measures to support Queensland’s COVID-19 response is consistent with the approach of other jurisdictions in Australia to continue to exercise their emergency powers in some form in 2022.
Amendments of s 25 (Transition regulation-making power)
Clause 14 amends section 25(7) of the COVID -19 Emergency Response Act to provide that a transitional regulation for a COVID-19 law will expire on the earlier of:
(a) two years after the COVID-19 law expires;
(b) the day the COVID-19 Emergency Response Act expires under 24AA(2).
https://documents.parliament.qld.gov.au/tp/2022/5722T166-3D77.pdf