WA Introduces New Bill To Extend COVID-19 Response Measures

Friday 6 November 2020 @ 1.47 p.m. | Judiciary, Legal Profession & Procedure | Legal Research

On 4 November 2020, the COVID-19 Response Legislation Amendment (Extension of Expiring Provisions) Bill 2020 (the Bill) was introduced into the WA Parliament by the Mr FM Logan, the Minister for Emergency Services (the Minister). The Bill is an omnibus Bill which proposes to extend the "timeframe" for the COVID-19 legislative amendments, which the Government claims "have helped Western Australia successfully manage the global pandemic and better protect Western Australians". The Bill is also, according to the Minister, intended to ensure that the amendments made to protect and support emergency and frontline workers remain in place for longer, providing much-needed certainty.

Overview of Bill

The Bill amends the Emergency Management Amendment (COVID-19 Response) Act 2020 (WA) and the Criminal Code Amendment (COVID-19 Response) Act 2020 (WA), which had 12-month "sunset clauses" from when they came into operation on 3 April 2020. The Amendment Acts introduced new clauses into the Emergency Management Act 2005 (WA) (EMA) to give hazard management officers or authorised officers the necessary ability to direct a person or a class of persons to take any action the officer considered reasonably necessary to prevent, control or abate risks associated with COVID-19.

The Amending Acts also increased penalties for serious assaults and threats in the context of COVID-19 against public officers such as frontline workers or police. These increased penalties of up to 10 years imprisonment reflect the seriousness of deliberately coughing or spitting on public officers who are trying to help keep WA safe.

These new amendments enabled WA to implement its border arrangements, put in place quarantining measures that stopped the spread of the virus, and allowed contact tracing and physical distancing measures in line with the health advice to better protect Western Australians.

The new Bill propose extending those necessary provisions for another six months from 4 April 2021 until 4 October 2021.

Amendment in Detail

The amendments to the Criminal Code (the Code) are found in clauses 4 and 5 of the Bill. Clause 4 amends section 318 of the Code which deals with assaults on particular categories of people, including but not limited to public officers, in the course of performing their duties. The Criminal Code Amendment (COVID-19 Response) Act 2020 amended section 318 of the Code to insert new subsection (1A). It provides that, for the period of 12 months following the relevant commencement date, subsection (1) applies as if amended by inserting new paragraph (la). This identifies a higher maximum penalty of 10 years imprisonment in circumstances where:

  • at the commission of the offence the offender knows that they have COVID-19; or
  • at or immediately before or immediately after the commission of the offence the offender makes a statement or does any other act that creates a belief, suspicion or fear that the offender has COVID-19.

Clause 4 of this Bill deletes the reference to “12 months” in section 318(1A) and insert “18 months”. When read with the new commencement date inserted by clause 7 of this Bill, this will have the effect that the new paragraph (la) will continue to apply for a further six months, with a cessation date of 4 October 2021.

Clause 5 of the Bill amends section 338B of the Code dealing with threats. The Criminal Code Amendment (COVID-19 Response) Act 2020 amended section 338B of the Code inserting a new subsection (2) providing that for a period of 12 months following the relevant commencement date, a higher maximum penalty would apply where an offender threatened to injure, endanger or harm someone by exposing them to COVID-19. This offence attracts a penalty of imprisonment of seven years, with a summary conviction of three years imprisonment and a fine of up to $36,000. Clause 5 of the Bill deletes the reference to “12 months” in section 338B(2) and inserts “18 months” in its place. When this change is read with the new commencement date inserted by clause 7 of the Bill, the effect is that the higher penalties will continue to apply to threats of COVID-19 exposure for a further six months, with a end date of 4 October 2021.

The amendments to the Criminal Code Amendment (COVID-19 Response) Act 2020 are found in clause 7 of the Bill. Clause 7 of the Bill amends section 2 of the Criminal Code Amendment (COVID-19 Response) Act 2020 which provides for the commencement of that Act and in section 2(b) currently provides that sections 4(2) and 5(3) commence on the day after 12 months from the assent day for the purpose of deleting from the Code provisions introduced by the Criminal Code Amendment (COVID-19 Response) Act 2020. Clause 7 of the Bill amends section 2(b) to delete the reference to “the day after the period of 12 months beginning on the day after assent day” and insert “4 October 2021” - having the effect that those provisions will continue to operate for a further six months, with a new cessation date of 4 October 2021.

The amendments to the Emergency Management Amendment (COVID-19 Response) Act 2020 are contained in clause 9. Clause 9 amends section 2 of the Emergency Management Amendment (COVID-19 Response) Act 2020 which provides for the commencement of that Act. Section 2(c) currently provides that section 10 of that Act commences the day after the period of 12 months beginning on the day after assent day. Section 10 provides that section 72A of the EMA (as inserted by section 9 of the Emergency Management Amendment (COVID-19 Response) Act 2020), and all references to section 72A in other sections of the EMA, are to be deleted. Sections 2(c) and 10 of the Emergency Management Amendment (COVID-19 Response) Act 2020 currently operate to delete all references to section 72A on 4 April 2021. Clause 9 of the Bill amends section 2(c) to delete the reference to “the day after the period of 12 months beginning on the day after assent day” and insert “4 October 2021”. With the effect that section 72A will continue to apply for a further six months, with a new cessation date of 4 October 2021.

Ministerial Comment

The Premier has stated in a Media Release that extensions of operation for the COVID-19 legislation are required to continue the emergency management processes:

"When these legislative amendments were put in place to protect our State from the COVID-19 pandemic, the State Government appropriately included sunset clauses which were expected to expire on April 4, 2021. . . These amendments gave our hazard management and authorised officers the necessary powers to help keep Western Australians safe from COVID-19 and they have worked extremely well . . . They are significant powers and the Parliament acted sensibly to ensure they were initially in place for 12 months, but it is now clear that they will be required further into next year so our State can continue to stay on top of COVID-19 and keep WA safe."

The Premier also stated:

"With the State Election to occur in March, this extension provides much-needed certainty . . . This new Bill will extend those powers by another six months to October 4, 2021 providing the legislative safeguards that have proven to keep us safe and in control of the pandemic."

The Minister for Emergency Service has stated in the same Media Release:

"Western Australia has been under a rolling State of Emergency to protect us from the COVID-19 pandemic since March 15. . .  Further to that declaration, significant powers were enacted through Parliament to give our frontline workers and hazard management officers the necessary ability and protections to manage COVID-19 . . .  These legislative frameworks meant we could address COVID-19 more quickly than many other jurisdictions around the world and return to a relatively normal life, which many other parts of Australia still do not enjoy. . .  This Bill extends that legislative framework by another six months so we can continue to carefully transition our State into the next stage of managing the COVID-19 pandemic."

The Bill is at second reading stage in the WA Legislative Council as at 5 November 2020.

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