Tasmania’s New COVID-19 Legislation

The Tasmanian Government has recently introduced the first piece of legislation into Parliament dealing with the COVID-19 pandemic.

Here is a link to the Bill:

http://www.parliament.tas.gov.au/bills/pdf/14_of_2020.pdf

Here is a link to the Fact Sheet for the Bill:

http://www.parliament.tas.gov.au/bills/Bills2020/pdf/notes/14_of_2020-Fact%20Sheet.pdf

This is an omnibus bill dealing with wide ranging issues relevant to Government administration during the COVID-19 pandemic. Notably the Bill provides:

1. For Government Ministers to issue public notices adjusting the operation of statutory requirements.
2. To exclude development relevant to the pandemic from the Land Use Planning and Approvals Act 1993. 
3. For similar maximum sentences for breaches of the Emergency Management Act 2006 (EM Act) and the Public Health Act 1997. 
4. Extending the time period for declarations of State of Emergency under the EM Act.
5. Changes to the Residential Tenancy Act 1997 protecting tenants from eviction.

The purpose of this article is to examine two issues not discussed in the Fact Sheet.

Personal Information Protection Act 2004

Many Tasmanians would be aware of the operation of the Personal Information Protection Act 2004 (PIP Act). This is the piece of legislation that stops, for example, your GP from speaking to a family member about a medical issue without your consent. The prohibition is, in fact, much broader.

The PIP Act prohibits a “personal information custodian” from disclosing personal information to another person, unless that disclosure is in the circumstances described in Schedule 1 Clause 2 or an exemption under Part 2 Division 2 applies. Schedule 1 Clause 2 permits the custodian to disclose the personal information where, for example, they have your consent or the disclosure is consistent with the purpose for which the information was collected. Part 2 Division 2 provides for some exceptions to the Act for limited law enforcement, use in courts and tribunals, and the provision of information to ASIO.

The COVID-19 Disease Emergency (Miscellaneous Provisions) Bill 2020 amends the EM Act by inserting a new Section 60A, which provides that the PIP Act does not apply when personal information is being disclosed, collected or exchanged for the purpose of responding to the emergency.

While the intention of the PIP Act was to protect personal information, that protection is not absolute. The PIP Act was never intended to face a global emergency of this magnitude. It is possible for an individual personal information custodian to apply to the Minister for a exemption  from complying with the Act, however, this is not practical where every personal information custodian may be required to disclose important information to the Government and the Government cannot require a custodian to make such an application.

It would be an absurd proposition to suggest that in this emergency doctors, hospitals, pharmacists and other health care providers should not provide important personal information to Government. After all, it is data and personal information that is key to solving the mysteries of this disease and protecting others from infection.

Likewise, it would also be an absurd proposition to suggest that a laboratory conducting COVID-19 testing ought not pass that information on to the Government because the patient had not consented to that information being released.

Section 60A makes sense in the current climate. Phillips Taglieri regularly encounters issues with the PIP Act when attempting to obtain important medical information from doctors, hospitals and allied health workers. Ultimately we need this information in order to assist our clients. When the COVID-19 pandemic is over we hope that there will be a full review of our privacy laws to make it easier for lawyers in general to help their clients.

Public Health Act, Section 18 

Section 18 of the Public Health Act 1997 provides that a person may apply to the Minister for compensation for any loss or damage suffered as a result of anything done by the Government during a public health emergency. The amount of compensation payable is an amount the Minister considers appropriate. There must be a direct connection between the loss or damage and the direction by the Director of Public Health.

We know from the Tasmanian Government Special Gazette of 23 March 2020 that the Government is relying upon the Public Health Act 1997 s 16 and not the EM Act in order to close pubs, clubs, gyms and the like. This means that ordinarily any Tasmanian individual or company who is required to shut their business as a result of the lockdown would be entitled to compensation from the Tasmanian Government. The requirement to pay compensation would likely extend to losses of employees who have lost income as a result of the lockdown.

Were Section 18 permitted to operate it would create a massive liability for the Tasmanian Government. The Government would effectively be indemnifying the entire Tasmanian economy.

Naturally the Government is concerned about this possibility and the Bill includes a clause that would see Section 18 not apply to the COVID-19 emergency.

The inclusion of this clause in the Bill signals the Government’s desire to insulate itself from liabilities associated with the pandemic. This raises a further question: If it transpires that doctors have to decide which patients receive intensive care and which miss out, will the Government pass legislation to amend the law relating to civil liability in order to protect its bottom line?

The Bill was introduced and read a second time on 25 March 2020. The Bill still requires the approval of the Legislative Council. 

Alex Kendall is an Associate at Phillips Taglieri. Alex works in the field of civil and criminal litigation.