ACT Bill to Remove Potential for COVID-19 Compensation Claims under Public Health Act

The Public Health Amendment Bill 2020 (the Bill) was presented to the ACT Assembly on 4 June 2020 by the Minister for Health, Rachel Stephen-Smith. Presenting the Bill the Minister described the Bill as "a Significant Bill", which are those that have been assessed by reference to a range of criteria to "warrant a more detailed reasoning in relation to compatibility with the Human Rights Act 2004". The Bill's key proposal is to amend the Public Health Act 1997 (ACT) (the Act) to "provide that compensation will not be payable to an otherwise eligible person in relation to any loss or damage suffered as a result of anything done in the exercise of a function under Part 7 of the Act" which deals with public health emergencies.

Background 

The amendments to the Act arise from the ongoing situation caused by the outbreak of viral pneumonia caused by a previously unknown pathogen in Wuhan City, in the Hubei Province of China, in December 2019. The pathogen was identified as a novel coronavirus genetically related to the virus that caused the outbreak of Severe Acute Respiratory Syndrome (SARS) in 2003.  The new strain of coronavirus is called SARS-CoV-2 and the disease it causes is called COVID-19. On 30 January 2020, the Director-General of the World Health Organisation (WHO) declared the outbreak of COVID-19 a Public Health Emergency of International Concern. On 11 March 2020, the Director-General of the WHO declared COVID-19 a global pandemic. The WHO requested that every country urgently take necessary measures to ready emergency response systems.

On 16 March 2020, the Minister for Health declared a public health emergency under section 119 of the Act due to the public health risk to the ACT community posed by COVID-19.

Overview and Purpose of Bill

The Bill relates to Part 7 of the Act which deals with public health emergencies. Section 119 of the Act provides that the Minister for Health may declare a public health emergency if satisfied that it is justified in the circumstances and such a declaration activates a range of emergency actions and powers. While an emergency declaration is in force, section 120 of the Act empowers the chief health officer to take any action, or give any direction, they consider necessary or desirable to alleviate the emergency specified in the direction. 

The current section 122 of the Act allows an eligible person to apply to the Minister for Health for compensation in relation to any loss or damage suffered by a person that results from anything done in the exercise of a function under Part 7 of the Act, where such is a function exercised while an emergency declaration was in force.

The Bill proposes to amend the Act by providing that compensation will not be payable to a person who would otherwise be eligible for losses or damages suffered as a result of anything done in the exercise of a function under Part 7 of the Act in relation to a COVID-19 declaration while such a declaration is in force. The exception to the proposed amendment is with respect to anything done in relation to a direction given under section 120(1)(f) of the Act relating to the power of the chief health officer to direct an occupier of property to place the property at the disposal or control of the chief health officer. 

The proposed amendment will be taken to have commenced on 16 March 2020, being the date when the Minister for Health declared the COVID-19 public health emergency and the retrospective application of the amendment is necessary because of the public health directions have already been made.

Due to the urgent nature of the Bill, consultation with the community and stakeholders was not felt to be possible, although the Security and Emergency Management Committee of Cabinet, the Justice and Community Safety Directorate and the Chief Minister, Treasury and Economic Development Directorate were consulted in relation to the amendment. The amendment is consistent with recent amendments made in Queensland and Tasmania to similar public health legislation. In South Australia, section 103A was recently inserted into the South Australian Public Health Act 2011 to expressly provide that no liability attaches to the Crown in relation to any acts or omissions in connection with the exercise of functions under the Act or any failure to exercise or discharge a function under the Act in relation to COVID-19.

Need for the Legislation

To justify the need for the legislation the Minister indicated in the Presentation Speech that: 

Further, the Minister indicated that even if attempts were made to impose limits on the range and scope of claims that could be made, "the all-pervading effect" of emergency directions would still give rise to claims for amounts of compensation that would "neuter the capacity of the Territory" to continue the broad range of measures involved in emergency directions intended for to benefit the whole community and indeed to plan for and conduct the ordinary business of government.

According to the Minister, the proposed amendment will "ensure that the ACT Government can effectively target resources aimed at achieving goals including supporting the medium to longer term health of the Territory economy". The Bill's   Explanatory Statement states:

Because of this the Minister says the current section 122 of the Act is not well targeted and opens the Territory to significant potential liability for unpredictable claims that have the potential to "significantly divert assistance from the broader ACT community". 

The proposed amendment is, according to the Minister, "a law within the power of the [ACT] Legislative Assembly and is not a law for the acquisition of property other than on just terms". The proposed amendment gives the ACT capacity to undertake the measures it has undertaken to assist all Canberrans and enables the ACT Government to assist those affected by the COVID-19 emergency and who have been impacted by the emergency directions. Person who suffer loss or damage as a result of anything done in relation to an emergency direction given under section 120(1)(f) (which relates to placing property under the control or at the disposal of the chief health officer) will not be excluded from making an application for compensation under section 122. In addition, the ACT Government will also still retain the discretionary "act of grace" framework under the Financial Management Act 1996 to provide direct financial support in appropriate and exceptional circumstances.

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Public Health Amendment Bill 2020, Second Reading and Explanatory Statement, available from TimeBase's LawOne service