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Marshall Govt backs down on COVID 'overreach' after Liberal dissent

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The Marshall Government has bowed to pressure from its own Liberal party-room to water down proposed laws that would permanently enshrine COVID-19 pandemic provisions in SA law.

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Attorney-General Vickie Chapman yesterday introduced the long-awaited legislation into parliament, where it will be debated in coming weeks.

“This Bill proposes to permanently enact some of the provisions of the COVID act so that they will not need to be extended again,” Chapman told the House.

“The provisions that are to be permanently enacted have assisted in the management of the COVID-19 pandemic and will be useful for other emergencies in the future.”

She said they would also “modernise some practices” while enshrining some practices to “promote social distancing”.

However, the tabled legislation differs significantly from a draft version that was leaked to media in recent days, with an entire section removed that dealt with “the powers of the state co-ordinator and other officers”.

That section enshrined the rights of those officers to exercise any power or function even if doing so contravened existing state laws, or “affected the lawful rights or obligations” of any SA citizen.

InDaily reported earlier this month that the draft Bill prompted party-room pushback, with further discussion pushed back until this week – an intervention understood to be made at the suggestion of Treasurer Rob Lucas.

Several Liberal sources have told InDaily Chapman returned to Monday’s meeting with a watered-down compromise to avert a potential parliamentary coup, with some members reserving their rights to cross the floor rather than vote for the Government’s own Bill.

“It’s pretty clear what the most offensive parts were,” said one insider.

“You can’t mount an argument you’re just doing the same things you’ve always done [through the pandemic] but those are brand new provisions compared to what we’re doing currently.”

They argued the Liberal Party should be “serious about restoring the status quo and people’s liberties”, slamming the original draft legislation as “a real case of overreach”.

“These are the sorts of things that if you’re a genuine Liberal – as opposed to a blow-in that Labor rejected – you’d be very concerned about,” they said.

“There are a group of us who think it’s important to restore civil liberties as soon as possible and not have more hangovers with the COVID stuff.”

Another source said there were “certainly elements that a number of us weren’t happy with”, however they insist: “It came back and was presented in the form that people could accept.”

“It was a respectful discussion, there was no screaming or shouting,” they said.

“Just points made, and points considered… what’s come back, really everyone’s gone ‘ok, we think we can live with that’, and away we go.”

But another noted: “It was certainly very clear that there was enough opposition that it was never going to survive any parliamentary vote.”

Asked if that meant people had threatened to cross the floor, they responded: “They had to reserve their rights [so] we don’t know… but it was very, very clear this was a leap too far.”

A spokesperson for Chapman said she had “no comment on party-room discussions”.

The A-G, however, acknowledged in parliament that the legislation “does not include provision for a continuation of what we have described as clarification laws as to the powers of the police”.

“That issue has been raised – it has been considered [and] I think there is some merit to continue it, but some concerns were raised about it, so this Bill does not include those provisions,” she said.

“There will be a comprehensive review as required under the act at the conclusion of this particular declaration period relating to COVID-19, and they are all matters that we can consider at a later date.”

She insisted that “unless otherwise expressed” the Bill’s measures have already “existed over the last 12 months… without incident or moment, and they are matters that need to be continued to expedite the efficient operation of the directions”.

The Australian Hotels Association had also raised concerns about the original draft.

In a media release, Chapman said the pandemic had “highlighted some shortcomings and gaps in our existing laws, which we addressed temporarily through the COVID-19 Emergency Response Act”.

“These measures have proven to be not only sensible but effective and practical, so, in order to avoid having to re-draft the temporary measures during a future emergency, we are amending the laws now,” she said.

“While we all hope that such a situation will never arise again, it’s important that we are fully prepared in the event that they are again needed.”

Labor’s legal affairs spokesman Kyam Maher said the Opposition would study the proposed changes, which follow repeated declarations from Premier Steven Marshall that SA’s emergency provisions “don’t lend themselves particularly well to a pandemic”.

Marshall has indicated broader changes are afoot, including relieving Police Commissioner Grant Stevens of his obligation to run the emergency response on an ongoing basis.

However, it’s understood any such changes are set to be considered in future legislation.

“On 10 occasions, the Opposition has supported the Government on legislative changes needed to deal with management of COVID-19,” Maher said.

“We’ll continue to be constructive, but we’ll need to have a thorough look at what’s being suggested – particularly given the Government has indicated on a number of occasions they’re looking to change how the Emergency Management Act works and how this emergency is managed.”

He said “we have seen over the last couple of weeks the Government having difficulty managing themselves” over its COVID plans.

“It’s very clear that the Government is divided about how they should be going about this legislation,” he said.

Measures that remain in the proposed legislation include provisions enabling “meetings required by law or under an Act” to occur using platforms such as Zoom or Microsoft Teams, and amending the Emergency Management Act to allow fines to be issued for non-compliance with directions or requirements during a declaration.

There are also measures allowing other administrative functions to be managed remotely, including e-payments for container deposit refunds and removing witnessing requirements for the execution of mortgages.

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