Legislative Council Thursday 30 April, 2020
Ms FORREST (Murchison) - Mr President, I make a couple of comments at the outset. It is disappointing we are dealing with this legislation all in one day, and dealing with it after only getting it for first sight yesterday morning. I appreciate the briefings we had yesterday afternoon and this morning, but it is a pretty big task, particularly as it covers so many pieces of legislation. When you read them in context with the acts they are amending, it is a big piece of work.
It is disappointing that the Government made a decision to only sit one day and to try to do it in one day. I know the Premier and Minister for Health particularly are very busy at the moment, and have many other commitments - the Premier with the National Cabinet and other considerations - but they can sit one day and we can sit another. It is disappointing that we look to be doing exacting the same thing next week. That is a problem and other members may speak about it another time. This could be done so much better. Parliament has been recalled for the purpose of dealing with emergency legislation. It does not mean that it should not get full scrutiny and should not be properly considered. It makes our task very difficult as our job is to ensure that it is adequately scrutinised.
I do not know if the other place will change their mind when they adjourn tomorrow morning - nice for them to go home and have a night's sleep. We do not get that. It is disrespectful to our House; if it is an emergency bill they should stay here and wait. I hope when they do come back tomorrow they reconsider when they return next week and possibly consider returning on Wednesday and start the legislation next week, which is obviously complex otherwise we would have been dealing with it today as well. I hope the Leader takes that back to Mr Ferguson, who seems to be in charge of these things.
Mr Gaffney - It could have finished in one day on the Wednesday or you go on to the Thursday. It gives you more flexibility than Thursday/Friday. It just makes sense.
Ms FORREST - Exactly. In reflecting on the COVID-19 act that we passed - I don't know how long ago it was; it seems like two years ago -
Mrs Hiscutt - It was 17 March 2020.
Ms FORREST - It feels like two years ago. I remember at the time making the comment that it was so nice to see my diary emptying out and all that time we would have. I should never say things like that. My days have been 14 hours long every day, seven days a week, with no let up. Part of that has been with my back ground in health. I have a great understanding of the implications of this virus but also my electorate has been the heart of the outbreak that Tasmania has seen. It has drawn international and national media attention. It has been very difficult for the people of my electorate, particularly for the healthcare workers who have been vilified in this situation. I got a message just a while ago from one of my constituents saying she pulled up at a fuel station to get fuel so she could get to work tomorrow and was abused at petrol station for being a healthcare worker 'who caused this outbreak'. When are people in Tasmania going to stop being such mongrels.
Mrs Hiscutt - It's not all people.
Ms FORREST - No it's not, but there are enough of them. This goes on top of comments by the Chief Medical Officer, and I called him out a bit earlier on the piece and I thank the Premier for calling him out, for relying on rumour and inuendo and absolutely destroying the souls of so many of our nurses and doctors on the north-west coast. Some of these young nurses have just graduated and started a job and that is what they are told. Unless you put yourselves in the shoes of those people for even five seconds you have no idea of the harm that this causes people, who are then locked up in quarantine in a hotel room for two weeks, often without anybody to protect their families. None of us have had to do that. None of us have had to be separated from our families. None of us have had to suffer the vilification, the rumourmongering, and the hate that has been thrown at some of these people.
Some of these people have put their lives on the line for us and they turn up when things are really tough. A report that was released today - and I have not had time to read it all, but I certainly will - talks about the reality that nurses turn up for work. When you are busy, and I have been there, and you have just got home after an eight-hour shift and a midwife rings you and says, 'We are desperate, Ruth, four women have just come into labour, can you come back?', you do not say, 'Oh no, sorry, I am a bit tired'. You say, 'Sure', and you go back because you do not let your colleagues down. To think these nurses working on the medical ward - who may have been infectious and not known it because they had no symptoms - would have decided because they were working on medical wards, felt well, they would not go to work today in case they might be infectious because there were a couple of COVID patients on the ward. They do not do that.
Some of the messages I have received and some of the things I have read on social media and phone calls I have had. When people are in isolation for 14 days, they have a lot of time on their hands. When they ring me, to talk about what is happening to them, I listen. I might have to listen for an hour for some of them because they have all the time in the world. I might not, but for them I did because it mattered to them to be heard.
We then had the Prime Minister stick his bib in as well. Again, same thing. It has been tough in my electorate and we still have problems there now. I hope people from other parts of the state can pull their heads in, particularly on the live feed of the Premier's updates. There are some absolute trolls on there. Maybe the ABC could do a little moderating. I am not sure what they do, but it is particularly bad on the ABC site. They are also pretty bad on the Mercury site. I have three sites going at once. I keep an eye on the Premier's site which is pretty good as far as the comments there. I woud say the Mercury and ABC are pretty crap at times. I do engage because I want to counter some of that. I know some of these health workers in isolation are watching this - people ought to give some thought to that.
I wanted to make people realise how it is so important we stick together in this. We do no finger pointing. We do no blaming. We look for learnings and we learn from those. We look for how to prevent this getting any worse and acknowledging at any time it could become worse anywhere in Tasmania. If it does, I will be out there backing the area it is in. I hope it does not, but if it does, you will hear no vilification, criticism or blaming from me, only support and encouragement, and help if I can.
I thank the Premier, the Minister for Health, Ms Courtney, and the Deputy Premier and their staff, and the Commissioner of Police for being so available to assist me in the work in my electorate. It has been publicly spoken about in other parts, but I want to acknowledge how important it has been to be able to get the responses, action and answers I have needed to assist the people of my electorate and broader than that at times. I do not ask people where they are from. If they come to me for assistance I will help them as much as I can. I want to make those points before I addressed this bill.
The bill before us covers a range of areas. I want to speak to two or three of them, not at any great length, but to raise some key points with them. I know the election - excuse me, I was a bit emotional there. I have to blow my nose.
Mrs Hiscutt - You have had a test and we know it was negative.
Ms FORREST - Yes, in fact, one of your staff called me the 'negative Ruth Forrest'. I thought he was being rather nasty, but he told me he wasn't. He was trying to be funny.
The Legislative Council elections were scheduled for the beginning of May this year. It has been an ongoing feast of trying to figure out what is the best thing to do. I have had some communications with a number of people about this. It is a matter of great interest because our elections are important. Democracy in this state is dependent upon it and every constituent in Tasmania deserves representation. It is important that we do have an elected member of all seats at all times, except perhaps in circumstances where a member dies and we have a period before a by-election can be held, or they retire or resign for some other reason.
We do need some certainty around this. While this does not give us certainty, it gives us a process to undertake that. At the moment, if this part of the bill was not supported, we still have an emergency notice issued under the COVID-19 act that deals with that, and I am not sure why that is not really suitable in some respects, because it calls for an election to be held in June, July or August. I accept that we do not know how long these restrictions are going to go on.
Mr President, there was a letter sent from the Electoral Commissioner to you on 17 April that I would like to not read out, but seek leave to have tabled and included into Hansard, and also a subsequent follow-up letter that was circulated today by the Leader after I emailed the Leader back regarding information the Electoral Commissioner provided at the briefing yesterday.
Before I seek leave, I would like to refer to some points, particularly in his second communication, because it makes sense for consideration to be given to a full postal vote in actually facilitating the election. The Electoral Commissioner's comments yesterday, and then this today, did explain - and it will appear as part of my speech if people agree to have this tabled and incorporated - but he sets out aspects of the Electoral Act that make our elections to this place the important democratic process that they are. He also goes on to say -
Outside of the legislative issues, any changes to this 120-year-old system should include consideration of other important aspects of Tasmania's electoral processes and rituals that create public consent and electoral mandate.
The inability to open any polling places removes one of the core elements of our democratic system and will make it much more difficult for some electors to vote.
The conduct of a universal postal ballot does not enable an elector to attend a polling place on polling day to cast their vote. The removal of this key right under the Act may make the election highly contestable.
That was one thing that concerned me - if we went down that path, the election could be contestable. You have however many candidates in each seat, but someone wins, and a losing opponent then challenges it, under the fact that it was held as a full postal vote, as it may not be a valid vote. Imagine the trauma of going through all of that. In my mind, that was quite convincing to me of the need to actually make sure that there is an opportunity for people to attend a polling booth.
I asked the commissioner at the briefing yesterday about whether the election can occur while we still are under a state of emergency, or a public health emergency. His answer was that it can, but he would need to have the approval of the Director of Public Health to facilitate that. We talked about measures that could be taken to protect, not only the public, but also electoral staff - such as Perspex shields and barriers between electoral staff and voters, and obviously social distancing in the booths, and the proactive sending out of applications for postal votes to encourage people to exercise that option if they chose.
While those things are being considered, then this is probably an effective model, but I do not think it should go on and on. This should be something that is constantly reviewed. I am sure, as we come back over coming weeks, a question that probably I or other members will ask the Government is what progress is being made in that? We do not have to wait for the emergency to end, according to this, for an election to occur. So they are questions that we will ask.
Mr President, I seek leave to table these two communications from the Electoral Commission and have them incorporated into my speech.
To The Honourable Craig Farrell,
President of the Legislative Council
In accordance to section 9(1d) of the Electoral Act 2004, we are writing to inform you that on Wednesday 15 April 2020 the Tasmanian Electoral Commission made the following resolution:
As a result of advice from the Director of Public Health that it is likely that it will be a health risk and breach of a future Direction to open polling places on any polling day in May, the Commission resolves not to conduct the periodic Legislative Council elections in May 2020.
Under section 19 of the Constitution Act 1934, there are to be periodic Legislative Council elections in each year and polling day for these elections is to be a Saturday in May (by default the first Saturday in May).
In response to the health risks of COVID-19 and related social distancing rest rictions coming into effect in Tasmania, the election dates for the 2020 Legislative Council elections was revised, changing polling day from Saturday 2 May to 30 May. The new date provided for an extended early voting period and longer period for electors to apply and be issued with postal votes, if they were unable to attend a polling place.
However, on 30 March, the Director of Public Health (OPH) issued directions creating significantly tighter restrictions on many facilities including those scheduled to be used as polling places and, with the exception of essential services, placed new restrict ions on gatherings of more than 2 persons. The Commission sought further advice from the Solicitor General and sought a formal direction from the OPH as to the safety of Tasmanians attending polling places for these elections.
On Friday 9 April, the Director of Public Health informed the Commission that it is likely that the gathering of people on a polling day in May and the assemblies of people needed to conduct an election would be a public health risk and breach a Direction issued at that time.
Therefore, the Commission resolved to not conduct the 2020 Legislative Council elections in May.
Why not a postal vote election?
With the new restrictions effectively removing the possibility of opening polling places for these elections, some have called for these elect ions to be changed from an attendance ballot to a full postal vote.
As established under the Electoral Act 2004, Tasmanian Parliamentary elections are to be attendance ballots, where voting should be undertaken at a polling place on polling day. As voting at these elections is compulsory, the Act also provides for supplementary processes - including pre-poll, mobile, Antarctic and postal voting to enable those electors unable to attend a polling place on polling day to vote.
After seeking advice from the Solicitor-General, the Commission takes the view that a Tasmanian Parliamentary election conducted solely by postal vote is not an election for the purposes of the Electoral Act. Therefore, to continue with an election in May and not be able to provide any attendance voting, would provide a structural problem, which may be highly contestable. There may also be other grounds for legal challenge to May elections, due to the restrictions on movement and campaigning by candidates. In addition, the dominance of COVID-19 across Tasmania in all forms of communications meant there has been no opportunity for any community conversation and debate regarding the 2020 Legislative Council elections.
Where to from here
A special gazette dated Wednesday 15 April 2020, included the following two elements:
• The revoking by the Governor of her Proclamation dated 30 March appointing a date on which a poll is held in respect of the periodical elections of members of the Legislative Council to be held in 2020, and
• The issuing of a notice by the Premier under section 13 of the COVID-19 Disease Emergency (Miscellaneous Provisions) Act 2020 to declare that the Saturday in the month that the Governor may by proclamation appoint under section 19(4) of the Constitution Act 1934, in behalf of the next periodical elections, to be held in the year 2020, be extended to a Saturday as fixed in the month of June, July or August in that year.
As a new proclamation appointing a new polling day is yet to be made by the Governor, it could be argued that there is still a requirement for the Commission to conduct elections with a 2 May polling day. Therefore, the Commission has made the resolution stated above for procedural completeness and to remove any doubt as to the immediate conduct the 2020 Legislative Council elections.
As the future course of the COVID-19 outbreak in Tasmania is unknown, it is not possible to predict how long current social distancing and gat hering restr ictions will be in place. The refore, new elect ion dates for the 2020 Legis lative Council elec tions are yet to be set.
However, as noted above, the notice issued by the Premier has enabled the Governor to appoint a polling day for these elec tions to a Saturday in the month of June, July or August this year.
Please feel free to contact either Mike or Andrew if you have any questions.
Mike Blake Andrew Hawkey Karen Frost
CHAIRPERSON ELECTORAL COMMISSIONER MEMBER
17 April 2020
The following are notes of the Electoral Commissioner answers to Member questions at the briefing on
Wednesday 29 April 2020.
Why can't the 2020 elections be conducted as a universal postal ballot?
• Consistent with all Australian Parliamentary elections, as established under the Electoral Act 2004, Tasmanian Parliamentary elections are to be attendance ballots where voting should be undertaken at a polling place on polling day.
• Voting in private at a voting screen in a polling place is the best way to ensure the secrecy of the vote. This principle is enshrined throughout the Act.
• As voting at these elections is compulsory, the Act also provides supplementary voting processes for those electors who cannot attend a polling place on polling day.
• More specifically, under section 108, a person who is entitled to vote at an election in a division may vote:
• on polling day at an ordinary polling place or
• by pre-poll - if they can't attend a polling place on polling day, or
• by mobile polling -if they reside at a home appointed to receive mobile polling
• A good analogy for the differences in legislation for conducting universal postal ballots and attendance ballots would be the comparison of a high jumper and a sprinter. Both are athletes on the track but built differently for different purposes.
• Part 5 of the Electoral Act outlines how elections are to be conducted. Within this Part the following divisions include sections that are written specifically for an attendance ballot:
• Division 1- establishes the election timetable which is considerably different for attendance and postal ballots.
• Division 2 - covers nomination, the announcement of candidates and the announcement that a poll will take place on polling day.
• Division 3 - outlines the arrangements for the appointment and opening of ordinary, pre poll and mobile polling places.
• Divisions 7 & 8 - outline how voting is to take place in ordinary, pre-poll and polling mobile polling places.
• Division 9 - outlines the postal voting service including the:
■ The need to apply for a postal vote by completing and lodging a postal vote application (PVA), and
■ That an elector is only entitled to vote by post if they determine that they are not able to attend a polling place or are a silent elector.1
• Division 14 - outlines the processes regarding compulsory voting, which may not easily transfer if the elections were to be universal postal ballots.
• Outside of the legislative issues, any changes to this 120-year-old system, should include consideration of other important aspects of Tasmanian election processes and rituals that cre ate public consent and electoral mandat e:
• The inability to open any polling places removes one of the core elements of our democratic system and will make it more difficult for some electors to vote.
• The conduct of a universal postal ballot does not enable an elector to attend a polling place on polling day to cast their vote. The removal of this key right under the Act may make the election highly contestable.
• Assuming the continuation of the current members - who already have an electoral mandate to represent their divisions - a delayed election hopefully enables the usual election processes to be conducted and may also enable other central elements of Legislative Council elections, such as candidate campaigning within the community, to also be undertaken.
What other impacts does COVID-19 have on these elections?
The Commission is satisfied that the electoral elements of the Bill will provide more flexibility for the Governor to appoint any future Saturday in 2020 as polling day for the 2020 periodical Legislative Council elections and ensure representation of membership for those divisions in the interim. However, the Commission also notes:
• The Commission usually produces the full Legislative Council election timetable for consideration by the President of the Legislative Council and the approval of the Minister for Justice, before producing the writs. The involvement ofthe Commission before the making of the Governor's proclamation is vital to ensure all additional election arrangements can be included.
• The timetable for these elections will need to be longer than the usual timetable due to the following consequences flowing from the COVID-19 outbreak:
• The Commission will need a week to 10 days lead time before the issuing of the writs to enable the production of the bespoke election advertising campaign, establishment of returning officer offices, the production of early election material and the preparation of the election roll.
• An extended early voting period to enable a greater period of time for electors to attend pre-poll centres, with an aim for less congested spaces for people to vote.
• Australia Post are flagging removing the priority mail service and extending delivery times including only every second day delivery for metropolitan areas, which will result in delays to the normal postal services. Commission staff are meeting with Australia Post later this week to look at any possible special arrangements for the elections.
• The Commission is working with the Department of Justice and Public Health to determine the appropriate PPE resourcing and other safety arrangements for polling places. This may mean fewer polling places on polling day. To a certain degree, this cannot be finalised until the period of election is identified and the assessed continuing level of public health risk.
The Commission has also undertaken preliminary discussions with a Tasmanian cleaning company to provide additional staff and possibly resources for the continual cleaning surfaces within polling places.
While the Commission will encourage electors to bring a pen for marking the ballot paper, 30,000 small golf pencils have been purchased for those electors without their own pen to use and take home with them.
• Some electors will still be concerned at attending a polling place, therefore postal voting service must be made as easy as possible. The Commission will post a PVA to every elector before the close of nominations. This will enable each elector to consider their circumstances and provide sufficient time for the full postal vote process to be completed.
Can the Commission guarantee the quick counting ofthe election after polling day? In short, no.
• The counting of votes usually requires many people, including scrutineers to be moving quickly in and around each other. The social distancing restrictions at the time of counting will dictate how many staff and scrutineers can be used.
• As the ballot papers and other election material will have come into contact with up to 50,000 Tasmanians within the north and south regions, the Commission is considering setting all material aside for a period to reduce the risk to our staff.
What will happen to the candidate expenditure cap? Under the Act:
• Electoral expenditure is expenditure that relates to:
30 April 2020
1 The only other group (known as General Postal voters) are electors that are generally unable to get to a polling place, which have this status listed against their national enrolment .
Ms FORREST - Mr President, I will move on from that aspect of the bill to the provisions regarding the Tasmanian Health Service and the need to enable the public hospital to provide other services or purchase other services that are not contained in the current service plan.
The Leader may need to respond to this in her reply, but I am wondering what was the barrier to issuing an emergency notice to enable the purchase of those services or things that would be facilitated under this provision. Was it determined to do it through legislation for the purposes of the COVID-19 emergency, rather than rely on the notice? There is an opportunity to provide a notice to achieve that, to amend the service plan or the service level agreement. That was what I wanted to ask on that one.
Regarding the amendments to the Emergency Management Act and the inclusion of infringement notices, I note there has been a lot of discussion; the member for Windermere alluded to these points as well, particularly the enduring nature of some of these. Personally, I do not see a problem with the inclusion of infringement notices. It would have been quite helpful in my electorate for the police to actually issue an infringement notice, rather than have to basically issue a summons to a person, because the person then thinks damn it, I have to go to court. If you could issue an infringement notice where they actually pay a fine upfront then they are more likely to think, well I will not do that again. They get the summons and they think that is off in the distance, particularly at the moment, so off they go again and do what they were doing, not following some of the instructions about staying home, and not perhaps abiding by other measures.
When we look at the Public Health Act, and the emergency under that, some of these offences have potentially very serious ramifications, and this was talked about to some degree in the briefing. It is common knowledge that we have some challenges on the north-west coast, with potential further outbreaks related to the North West Regional Hospital outbreak, and the origins of that.
Having the capacity for police to actually issue an infringement notice right now, right there, right then, I believe will have a much more meaningful impact on people's behaviour, particularly as a public health officer or a council officer can do that anyway. We have asked the police to be out there now, and they are, checking on where people are going, and why they are going there, and turning them around if they are just heading off down to Bunnings in Launceston, or whatever it might be. They are being turned around. Many have been warned. There have been some arrested.
Some other serious offences are people not abiding by their quarantine arrangements. If you are in quarantine because you are COVID-19 positive, that is very serious. If you are in quarantine because you have been exposed to a COVID-19-positive patient or person, you may be infectious yourself. That is very serious. Those people may well be arrested and summonsed but at least there is an opportunity if it what the police would consider, and they use their discretion and say this is a lower level offence, then they have got a larger suite of actions.
It is the police out there doing this. It is not the council staff. It is not often the public health officers. It is the police. We call on police to be doing this. We call on them to be out there checking on the people in quarantine. You have seen it on social media. You have seen it on the news. You have someone in quarantine and the police go and ring the person from outside. The person comes out and puts their identification documents on the step, they step back, the police officer goes up with the basic PPE on, has a look at their identification and checks it, reminds them of their obligations and off they go. That is the police doing that.
Mrs Hiscutt - They do more than that. They do ask, are you okay?
Ms FORREST - Yes, I am saying we are asking the police to do this. We are not asking the public health officers to do this. We are asking the police to stop people out there in front of your place at Howarth and ask them where they are going.
Mrs Hiscutt - They do.
Ms FORREST - I know, that is what we are asking police to do. We are not asking public health officers to do that. It makes sense to give police the opportunity to issue an on-the-spot fine as a more timely deterrent to doing the wrong thing.
In relation to the penalties in the Public Health Act that are being increased for directions made under a notifiable and infectious disease that is outside the public health emergency period, what do other jurisdictions have? I am hopeful that her staff and advisers will have some information about the penalties in other jurisdictions, the monetary penalty and jail term, potential custodial sentence. If they could do that, that would be helpful just as a comparison. It may be helpful during the Committee stage of the debate.
The other matter is related to the registration of vehicles being suspended for a period, and the wheelchair accessible taxis when they are coming out of the time when they would normally would need to be replaced. It is sensible in this time. We need those services to be made available. Many operators are having struggles anyway because people are not moving around as much, they are not using them as much, so it is a pragmatic and sensible approach. I know some work was being done on that by the Government before this happened. This provides some relief. There is probably more work to be done in the longer term but that is a matter for another day.
I support the intent of the bill. I will be listening to any other amendments that are being proposed. I thank members for their indulgence in allowing me to speak about the harm that has been done to some people in my electorate through the behaviour of others.
One final comment on that. I want to acknowledge and thank the really hardworking staff at the Launceston General Hospital who have taken on the patients of the North West, the majority of them. Some have gone to the Mersey, but anyone with a higher acuity than could be dealt with at the Mersey have all gone to the LGH. These are sicker people, including a COVID-19 patient. The Mersey took the COVID-19 patients from Burnie. I thank the Mersey staff as well because that is a huge task - and a frightening task - to be caring for a positive patient.
I thank the LGH midwives. They had one of the busiest days and busiest months they have ever had. That was before the north-west women turned up. They just added to the top of that. So it has been extraordinarily busy for those nurses and midwives. They have worked double shifts. They have done everything they can to help the women who are struggling, who are having to travel four hours. They have had a woman from the Arthur River who runs a farm with her husband. The woman relocated to Launceston, the husband went back, four hours back, so that she could wait until she was in labour. When she went into labour, because he had to run the farm, he came back four hours again to be with her during labour.
That is the sort of thing that women in my electorate have had to do, families had to do. It has been a huge task. I have directly assisted about a quarter of the women who were due in this period. There are still some in Launceston because we do not have full maternity services at the North West Private Hospital open again yet. I acknowledge the work of the Launceston midwives who have done a fantastic job. They have been under enormous pressure. Thank you to them and I support the intent of the bill.