Page 1394 - Week 05 - Thursday, 18 June 2020
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I repeat the response that I provided to the scrutiny committee, because I am sure that most people probably have not had an opportunity to read my letter to Mrs Jones of yesterday. As I said earlier, the ACT government did examine the range of approaches to compensation under public health and emergency statutes in other Australian jurisdictions, and this consideration did extend to section 204 of the Public Health and Wellbeing Act 2008 in Victoria, which provides for compensation in respect of public health directions in circumstances where the use of a power was based on insufficient grounds.
The Victorian provisions, as I said earlier, are a reasonable consideration in the context of an ordinary public health situation that does not require protective whole-of-community action. However, the government has concluded that such provisions would not be suitable as a response to COVID-19 in the ACT. There are a number of reasons for this. Taking this approach would potentially draw heavily on the administrative resources of government and involve substantial costs for applicants, with a low probability that any applications would actually be successful. This is because the Chief Health Officer’s directions in response to the global pandemic have been guided by the Australian Health Protection Principal Committee and have been consistent with those of other jurisdictions. It is therefore considered very unlikely that a decision-maker would find that there were insufficient grounds for directions made or actions taken under part 7 of the act.
The treasury has estimated that these administrative costs could run into the millions, depending on the number of applications received, because each application would need to be considered on its own merits and individual decisions made. Many applicants would also incur legal and administrative costs in putting together applications that adequately set out their losses, how those losses relate to a thing done under part 7, and why there were insufficient grounds for the thing.
At the same time, while the probability of any application being successful is considered low, the potential fiscal impact of a successful application could be significant. This would particularly be the case if a successful application opened the door to a large class of applicants receiving compensation in relation to the relevant direction or action. This fiscal risk, while not quantifiable, could dramatically affect the territory’s financial position and the ACT government’s ability to respond to the whole-of-economy and whole-of-community impact of COVID-19. This includes the many costs and consequences of the pandemic that, as I have said, are not directly related to the Chief Health Officer’s actions or directions under part 7 of the act.
As Mrs Dunne has noted, a number of other jurisdictions have also made amendments to provide that the compensation provision in their respective public health legislation does not apply for loss or damage in relation to the COVID-19 emergency. These jurisdictions have recognised that their compensation provisions with respect to the exercise of public health powers are not designed to respond to pandemics which require the imposition of community-wide restrictions.
Across Australia, the public health measures to limit the impact of COVID-19 on the Australian community are anchored in advice from the AHPPC and the national
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