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COVID-19 Omnibus (Emergency Measures) and Other Acts Amendment Bill 2020

We will amend the COVID-19 Omnibus (Emergency Measures) and Other Acts Amendment Bill 2020, so police, PSOs, security guards are not given power to decide who gets detained under health emergency powers.

Dr READ (Brunswick) (11:52): The COVID-19 Omnibus (Emergency Measures) and Other Acts Amendment Bill 2020 temporarily extends changes allowing the ongoing operation of essential public services during the coronavirus pandemic, including the running of the courts and local government through the use of audiovisual technologies, as well as extending other essential supports, such as support payments for people with long-term workplace injuries unable to return to work due to the pandemic. These extensions are necessary and are supported by the Greens.

The bill also makes new changes to ensure people’s safety at home and work, including strengthening the occupational health and safety powers of workplace inspectors to ensure that they reduce the risk of COVID transition and providing greater powers to registrars in the Magistrates and Children’s courts to be able to change the date, time or place at which court proceedings are listed and allowing them to prioritise urgent family violence and personal intervention matters. We also strongly support these measures.

See an interview with 774 ABC Radio on the Omnibus bill here. 

I want to address in detail, however, the proposed temporary changes to the Public Health and Wellbeing Act 2008 in the bill where we do have concerns. The draft bill was emailed to members on Monday night and a briefing provided the following morning. We are debating it three days after that. I thank ministerial and departmental staff for providing an additional briefing to me at late notice, but a government that really cared what people, and therefore their elected representatives, think about its legislation would allow proper time for it to be considered.

The bill broadens the categories of people who can become authorised officers of the chief health officer, allowing the Secretary of the Department of Health and Human Services to appoint anyone deemed to possess appropriate skills, attributes or experience. Suggested examples could be specialist staff from interstate or individuals from culturally and linguistically diverse communities. The bill will allow people with these skills to have the powers to give health directions, currently only provided to appointed staff from the DHHS. So that is a useful addition to assist with control of outbreaks in specific communities and to bring in expert staff from interstate.

But the bill also allows police, who are explicitly mentioned in the amendment, and other classes of people, which could include protective services officers or private security guards, to now become authorised officers and to unilaterally determine that a person is a serious risk to public health and should therefore be detained. Currently only public servants with the relevant skills and experience can make that decision, and they call upon law enforcement to separately enforce directions if necessary. So the bill would allow police to both make health directions on individuals and then to enforce them.

While the bill does not create any additional powers, it does specify existing powers in the act in the context of COVID-19, including circumstances for preventative detention. Detention under these powers will occasionally be necessary. As daily case numbers fall and restrictions on the movement and mixing of people are lifted, the importance of isolating those with infection increases. When infections are uncommon each case is proportionately more important as a potential cause of a future outbreak, and we know that some people are unwilling or unable to self-isolate. New section 200A in the bill defines a high-risk person as someone with COVID-19 or a person who has been notified as being a close contact of a person diagnosed with COVID-19. It allows pre-emptive detention of these high-risk persons if an authorised officer ‘reasonably believes’ that the person is likely to refuse or fail to comply with the direction.

As mentioned, the Public Health and Wellbeing Act already allows detention of people posing a serious risk to public health under the state-of-emergency powers and arguably even under non-emergency powers in section 117 of the act, so the further need to classify a high-risk person is unclear. It is as if the existing Public Health and Wellbeing Act entitles officers to detain aliens and the omnibus bill entitles them to detain purple aliens. Why create this subset for detention? It is likely that the intention is to make the powers less ambiguous to authorised officers. We are worried that by clarifying these powers we are taking serious powers, that based on the past use of section 117 health officials will only use when absolutely necessary, and potentially endorsing them for more extensive and heavy-handed use.

Our suspicions are compounded by the fact that the bill seeks to now also confer these powers on police and potentially protective services officers and even private security guards, and the power to order a person’s pre-emptive detention is substantial. It is expected that such preventative detention will be applied to vulnerable people, such as those with disability or mental illness who would find it hard to adhere to directions such as self-isolation. Working with vulnerable people requires patience and communication skills to reduce fear and to de-escalate conflict. Now, many police have these attributes but, as we have all witnessed recently, some in law enforcement do not. Other disadvantaged people, such as those who have fled authoritarian regimes or those Aboriginal and Torres Strait Islander people who have deep historical mistrust of policing, are very unlikely to rush to do anything that will increase their contact with police. This will contribute to a reluctance from some communities to be tested for COVID-19, and that is the very opposite of what we want from a public health intervention.

We see this with other infections in other communities. We have seen, for example, in some high-prevalence communities a reluctance to get tested for HIV because of the consequences, or the feared consequences, of a positive result. We risk the same occurring here. We have all seen recent examples of law enforcement officers’ inability to display calm judgement and discretion in issuing fines for breaches of restrictions and at times unnecessary use of force and violence against vulnerable people. The community was shocked by the sirens-blazing approach to the detention of people in public housing estates, now the subject of an Ombudsman’s investigation.

This is why we need people with skills in public health and an engagement with vulnerable groups and social services leading the response to this crisis. We want a health-focused approach to a health crisis. Such an approach operated by medical professionals at Cohealth is already identifying and helping people who have trouble self-isolating in Melbourne’s inner, northern and western suburbs. Police, let alone the lesser trained PSOs or security guards, are not appropriate people to be predicting who is unlikely to comply with health orders, who should be detained and then policing their own decisions. So under standing orders I wish to advise the house of amendments to this bill and request that they be circulated.

Greens amendments circulated by Dr READ under standing orders.

Dr READ: The amendments simply preclude police, protective services officers and private security guards from being appointed as authorised officers under the Public Health and Wellbeing Act so that they are not acting as expert witness, judge and jailer. They are important to ensure that there is an appropriate separation of responsibilities and that the most powerful directions that can be made concerning public and community health will be made by people with skills and experience in these areas, not by people with skills in policing and law enforcement. They are essential to ensure that there is no abuse of emergency powers and to maintain public confidence in the health response to this pandemic, and I look forward to supporting an amended version of this bill.

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Dr Tim Read
Greens MP for Brunswick
18 September 2020



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