BILL: COVID-19 Emergency Response

Today Mark outlined the Greens' support for this Government Bill which gives the Government and SAPOL additional powers during the current health emergency. It also provides protection for renters facing hardship due to COVID-19. Mark also outlined two Greens' amendments to the Bill, which subsequently passed. 


COVID-19 Emergency Response Bill 2020 

I rise also to support the second reading of this bill. I think it is stating the obvious that this is the most difficult time for South Australia that any of us have been through as Members of Parliament. I risk people having to disclose their birthdates when I say this but none of us other than the Hon. John Darley, I think, was alive during the Second World War. Even some of our older members were not even young babies, apart from the honourable member I mentioned. This is the most difficult time. All of us been through droughts, floods, economic downturns and a whole range of other challenges that this state has faced; this is, in my view, by far and away the most far-reaching. None of us has been unaffected and, as we know, some people are affected much, much more than others.

Also, it is probably fair to say that this current pandemic has brought out the best in South Australians mostly and the worst occasionally. I think for those of us who believe in civil society and with the belief that people ultimately in our society want to do well, not just for themselves but for each other, I have every confidence that we will get through these challenges.

In relation to this bill, it has been said many times that desperate times call for desperate measures, and I was reflecting to someone the other day when we were contemplating this bill, and I said that in normal circumstances many of us would be out marching in the streets. We would be railing against the suspension of important principles and laws. We would be bemoaning the fact that this was the first step on a march towards a totalitarian regime. We would be up in arms, absolutely.

Bills like this do present an enormous challenge to those of us who value human rights and who value our democratic processes. It is anathema to us to abandon hard-won civil liberties or to suspend the checks and balances that are at the heart of a civilised society governed by the rule of law, because the universality of human rights is fundamental. The right to liberty, free association and all these other rights are not something that we can switch on or switch off lightly. The fear, of course, is that, once switched off, they may never get switched back on again.

I do not hold that fear overly because I think Australians are better than that. I think normal service will be resumed. In fact, I would like to think that we do not just resume normal service, we improve on normal service as a result of the experience that we have all been through, but the post-pandemic world that we want is a debate for another day. I will not go into that now.

Matters such as those in this bill are not simple. Clearly, the current public health emergency requires us to take a different approach. The test for the Greens, when we are looking at the suspensions or relaxations or changes to normal standards of government behaviour, will be to analyse each of the measures against a series of important questions.

I have come up with five. I am sure there are many more, but the lens through which I will be examining this bill is: is the measure really necessary? That is the first question. Secondly, will the exercise of the power be properly and comprehensively reported? In other words, will we know what decisions have been made? Related to that is the third question: will the decision-makers be properly identified and, most importantly, will they be accountable for their actions?

Fourthly, does a person who is subject to some of these executive actions, who believes that the action was arbitrary or even unlawful, have recourse? For example, can they go to the courts for judicial review? Do they have the right to redress if it turns out that powers were inappropriately exercised? The fifth question is: if the power to make law by delegated or subordinate legislation is expanded, as this bill clearly does, will the executive remain accountable to the Parliament?

I know there are more questions than that, but they are the going back to first principles questions that I have devised to help go through this bill and work out what is in fact the best outcome for the people of South Australia.

I will start with that final question about accountability to Parliament, given that most of the additional powers contained in this bill are regulation making powers. That is at the heart of it. That raises the question in terms of accountability to Parliament; that is, whether and how often Parliament is going to be able to sit during this public health emergency. Delegated legislation is ultimately prepared by the executive but it is accountable to the Parliament, and we do have the capacity to interrogate and, if necessary, disallow those regulations.

The word in the corridor is that the published sitting schedule for Parliament will be cancelled and that Parliament is likely to sit only monthly from now on, at least during the currency of this pandemic. It is unclear whether the Government has in mind sitting for a whole week each month; whether it is proposing to sit only on Tuesdays to deal with government business or maybe Tuesdays and Wednesdays to deal with government and private business.

Regardless, if we are sitting less, then we also need to modify the way that we hold the executive accountable. We will have a debate later this afternoon on one measure that the opposition is putting forward to provide for accountability, but there are some others that I have chosen to incorporate as amendments to this bill. The two things that my amendments seek to do are, first of all, to ensure that any regulations that are made under these emergency powers are tabled in Parliament promptly.

The normal rule is that a minister has six sitting days in which to table regulations, so in the worst case scenario that could mean that we would not see regulations until six months after they had been made if Parliament only sat one day per month. If Parliament sat two days, then it might be three months before we could see the regulations and be able to interrogate them and to move disallowance.

My amendment proposes, not for all regulations but for regulations made under these emergency powers, that they be tabled on the next sitting day in Parliament. That is not a difficult thing to do. They are put in the Government Gazette. It is not a big deal. It is not a great administrative burden to then table them in Parliament. That, I think, is part of the quid pro quo if Parliament is to agree to sitting less. We need to make sure that the Government cannot sit on regulations by not tabling them in Parliament and therefore not allowing this chamber, in particular, the power to disallow.

The second amendment relates again to something quite mechanical. It relates to the tabling of reports in Parliament. As all members know, one of the standard items at the start of each sitting day is that ministers stand up and table a whole range of scheduled reports, like annual reports from government bodies, from statutory officers or from local councils, but there are also ad hoc reports that are tabled. We get them from the Coroner every so often. There is a whole range of these reports.

When you go through the South Australian statute book, you find that the period for the tabling of those reports varies. Six sitting days is a common time frame. Some of the more urgent ones are listed as three sitting days, but generally it is a fairly long period. For exactly the same reason that I proposed in relation to regulations, I think we need to see these reports much sooner than the statutes would otherwise allow.

My amendment proposes that wherever it says 'X number of sitting days' in a statute, we cross that out and write in 'seven calendar days'. That recognises that the Government might want to contemplate a report, an annual report for example, from a statutory officer. They will have a week to contemplate it before it hits the public realm and to have their response ready. It will not be a comprehensive response, but at least they will not be taken by surprise that a report hits the public realm at the same time it hits the minister's desk. We are not looking for that, So seven calendar days.

Of course, Parliament in all likelihood will not be sitting, so the amendment proposes that the tabling be done by delivery to the President. If the President for some reason is not around, then the clerks can receive it. We then go through the normal process, where the document is regarded as tabled and put on the parliamentary website. I would be urging the clerks to have a process in place where perhaps an email goes out each day along the lines of, 'Dear members, the following documents were tabled today,' and a link to where they are.

I understand the practice has been for the House of Assembly to be the central repository of these documents. They are mostly tabled in both houses of Parliament simultaneously, so that avoids duplication. It means the Legislative Council does not have to maintain its own tabled papers database; that makes sense. The bottom line is that we want to make sure that these documents are presented to the Parliament for the purposes of accountability in a timely manner. That is the second amendment that I have moved.

In terms of the detail of the bill, as other members have said, we will go through in committee in more detail each of those provisions, but I will say that I was very pleased to see the eviction moratorium provisions. As some members know, I have a bill not yet circulated but on the Notice Paper that I intended to introduce last Wednesday, which provided for an eviction moratorium for residential tenants.

The Government has picked that up in this bill. I certainly will not be proceeding with mine, but I think it is important that, as other members have said, the relationship of landlord and tenant in a commercial or a residential context is absolutely fundamental to the way society works, because it provides housing for a large number of South Australians. I am not sure of the current figure—it might be a quarter, it might be a third of people who rent, as do probably a majority of businesses such as shops.

So we do need to manage that relationship and, as other members have said, we have a bit of a domino effect happening where a tenant might lose their job, and their capacity to pay rent is reduced. If they cannot pay rent the landlord potentially cannot pay the mortgage; the landlord might also have lost their job. We know that these things need to be dealt with holistically. The problem we have is that at the top of the food chain are the banks, which are not subject to state control, whereas the tenancy laws, both commercial and residential, are our responsibility.

I will comment on other parts of the bill when we get to them, but the final thing I would say is just in relation to the comments of my colleague the Hon. Tammy Franks: she is right that political goodwill is absolutely essential and trust is essential if we are going to see this through in a civilised way and not resort to traditional adversarial politics. I think political goodwill is quite abundant at the moment, and I think it is incumbent on all of us to make sure that that currency is kept stable and not devalued.

I think there is also a great degree of trust that this Parliament is giving to the Government. We are trusting them that they will use these powers well and in the best interests of all South Australians. The final thing I would say is that, if the Government is keen to keep that political goodwill and that trust, then there are things it can do that are beyond the normal process that would actually make their life easier and would help with the political cohesion in South Australia, and that would include things like relevant ministers providing advanced copies of regulations to the opposition, to the crossbench, inviting other members of parliament into the tent to get briefings on issues of public importance.

The more the Government seeks to bring the opposition and crossbench with them, the less likelihood that we will devolve back into an adversarial regime. I think we can do much better. I think this is a great testing time for doing politics better in this state, hopefully some of which might translate into post-COVID-19 politics as well. My plea to the Government is: we are trusting you with extraordinary powers, and we need you to take us into your confidence as well. I hope that is the approach that responsible ministers take as they go forward and consider how to use these extraordinary powers we are giving. I support the second reading of the bill.