WA Parliament Passes Four New COVID-19 Response Acts

In the most recent week of sittings (1 to 3 April 2020) the WA Government has introduced and immediately passed through the Parliament several items of legislation targeted at matters relating to the State's response to the coronavirus (COVID-19). Western Australia has introduced and passed four Acts so far. 

Criminal Code Amendment (COVID-19 Response) Act 2020 (No 8)

This Criminal Code Amendment (COVID-19 Response) Act 2020 (the Act) was assented to on 3 April 2020. It was introduced into the WA Legislative Assembly as a Bill on 31 March 2020 by Mrs M. H. Roberts, the Minister for Police, and quickly passed through all stages to 3rd Reading in the Legislative Council on 1 April 2020, reflecting the urgency of the legislation.

The Act makes amendments to the WA Criminal Code to introduce higher maximum penalties for the offences of "serious assault" and "threats committed in the context of COVID-19".
The purpose of the new provisions, according to the Explanatory Memorandum accompanying the Bill is ". . .to reflect the seriousness of offending against public officers and certain other officers delivering frontline services . . .". The officers protected include:

• police officers, 
• doctors and nurses, 
• ambulance workers, 
• bus drivers, and 
• prison officers.

The offence occurs where the offender has COVID-19, or makes a statement or does any other act to create a belief, suspicion or fear that they have COVID-19. The Act does this by:

• introducing a maximum penalty of 10 years’ imprisonment for certain serious assaults; and
• introducing a maximum penalty of 7 years’ imprisonment for threats to injure, endanger or harm certain categories of persons by exposing them to COVID-19. 

Emergency Management Amendment (COVID-19 Response) Act 2020 (No 11)

The Emergency Management Amendment (COVID-19 Response) Act 2020 (the Act) was assented to on 3 April 2020 and was originally introduced into the WA Legislative Assembly as a Bill on 31 March 2020 by Mr F. M. Logan, the Minister for Emergency Services, and passed through all stages of Parliament in 2 days on 2 April 2020.

According to the Bill's Explanatory Memorandum, the Act amends the WA Emergency Management Act 2005 (the EM Act) by:

• introducing new provisions into WA's emergency management framework to strengthen the State’s capacity to respond to the COVID-19 pandemic and   similar events should they occur in the future,
• making the current law clearer and amending existing provisions to remove barriers in existing laws that are impeding the COVID-19 response.

The WA Government sees the provisions of the EM Act playing "a key role in the State’s emergency management response to the COVID-19 pandemic". The pandemic is the first time in WA that a state of emergency "of such significant scope and magnitude has been declared utilising the provisions of the EM Act". As a result the WA Government takes the view that the COVID-19 pandemic has presented issues and challenges not contemplated by the EM Act and has brought to light inadequacies in the EM Act needing rectification to strengthen WA’s capacity to respond to both the current emergency and emergencies more generally.

According to the Government, a particular area of inadequacy shown up by the COVID-19 emergency is that the provisions in the EM Act to compel compliance with directions given by emergency management authorities under the EM Act need to be improved.

The government indicates in the Explanatory Memorandum, that the current COVID-19 pandemic is an unprecedented situation and that otherwise, the amendments introduce what might otherwise be considered to be extraordinary provisions. Mindful that some provisions may be only necessary or applicable to the COVID-19 pandemic response, a sunset clause of 12 months for some of these changes has been included in the Act by the government. 

Transport (Road Passenger Services) Amendment (COVID-19 Response and Regional Assistance) Act 2020 (No 10)

The Transport (Road Passenger Services) Amendment (COVID-19 Response and Regional Assistance) Act 2020 (the Act) was assented to on 31 March 2020. The Bill for the Act was introduced into the Legislative Assembly by Ms R. Saffioti, Minister for Transport, and passed through all stages to 3rd Reading in the Legislative Council in 3 days on 2 April 2020.

The Act amends the Transport (Road Passenger Services) Act 2018 (TRPS Act) to make provision for assistance payments for:

• specified passenger transport industry participants in response to revenue losses experienced in connection with the COVID‐19 pandemic; and
• certain former holders of regional taxi‐car licences, in recognition by the Government that many of those licensees acquired their licences through transfer from a third party as part of a going business concern.

Family Violence Legislation Reform (COVID-19 Response) Act 2020 (No 14)

The Family Violence Legislation Reform (COVID-19 Response) Act 2020 (the Act) was assented to on 6 April 2020. The Bill was introduced into the WA Legislative Council on 31 Mar 2020 by the Hon Sue Ellery, Leader of the House, and passed through all stages to 3rd Reading in the Legislative Assembly in 3 days on 2 April 2020.

The Act amends the Sentencing Act 1995, the Sentence Administration Act 2003, the Bail Act 1982 and the Restraining Orders Act 1997 for the purpose of implementing reforms to assist in the justice system’s preparedness and response to the spread of the Corona virus. 

Sentencing Act 1995 (Sentencing Act).

The definition "electronic monitoring device" has been amended to broaden the definition to capture radio frequency devices and global positioning system devices, and any other technology that may be used for the purpose of the electronic monitoring or curfew requirements under a sentencing order, as well as all ancillary equipment associated with those devices. 

Section 8 inserts a new section 76A, dealing with electronic monitoring requirements, into the Sentencing Act to allows a court to impose an electronic monitoring requirement when imposing an "Intensive Sentencing Order" (ISO). The section empowers a court to impose such an electronic monitoring requirement for the purpose of monitoring the location of the offender. 

Section 9 amends section 84 of the Sentencing Act to insert subsection (2) to allow for an electronic monitoring requirement to be imposed as a primary requirement of a "conditional suspended imprisonment order". 

Section 11 inserts section 84CA into the Sentencing Act which empowers a court to impose an electronic monitoring requirement when imposing "conditional suspended imprisonment" (CSI) for the purpose of monitoring the location of the offender. 

Section 12 inserts section 147A  to provide a general provision enabling administration by the Department of Justice of approved electronic monitoring, consistent with the approach in existing legislation.

Section 13 makes a consequential amendment to Part 2 of Schedule 1A of the Sentencing Act because of the separation of breach of family violence restraining order and breach of violence restraining order offences in the Restraining Orders Act 1997. This Schedule sets out the relevant simple offences for the purposes of Part 2, Division 2A of that Act, which deals with sentencing where declared criminal organisations are involved. This amendment simply ensures breach of family violence restraining order and violence restraining order both remain in the offence Schedule.

Sentence Administration Act 2003 (Sentence Administration Act).

Similar amendments to those described for the Sentencing Act relating to "approved electronic monitoring device" are made to the Sentence Administration Act.

Bail Act 1982 (Bail Act)

The Bail Act is also amended to widen the definition of "approved electronic monitoring device". Section 23 deletes section 16A(3) of the Bail Act and the effect of this amendment is to allow police to grant bail for breaches of "family violence restraining orders" (FVROs) or "violence restraining orders" (VROs) in an urban area, as they currently can in regional areas. Currently, police officers do not have jurisdiction to grant bail to an accused who has been arrested and charged with breaching a restraining order in an urban area. In such cases, bail can only be considered by a court and an accused may be kept in custody overnight until he or she can be brought before a court. 

Restraining Orders Act 1997 (Restraining Orders Act)

Section 30 inserts the following definitions into section 3(1) of the Restraining Orders Act:

• "Affidavit" includes an electronic declaration made in accordance with the rules of court.
• "Public Advocate" means the person holding or acting in the office of the Public Advocate under the Guardianship and Administration Act 1990.

Section 31 deletes and replaces existing section 9 of the Restraining Orders Act and allows the court to make procedural rules in relation to a number of functions relating to restraining order hearings. The amendment is for the purpose of enabling electronic lodging of restraining orders so that functions that must currently be undertaken by a Registrar can be carried out by the court’s electronic system where required.

Various other amendments relating to the enabling of the carrying out of hearings and lodging of orders electronically are also made by the Act.

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Criminal Code Amendment (COVID-19 Response) Act 2020 (No 8), Criminal Code Amendment (COVID-19 Response) Bill 2020 (177 of 2020) [WA] and explanatory materials available from TimeBase's LawOne service

Emergency Management Amendment (COVID-19 Response) Act 2020 (No 11), Emergency Management Amendment (COVID-19 Response) Bill 2020 (179 of 2020 [WA]  and explanatory materials available from TimeBase's LawOne service

Transport (Road Passenger Services) Amendment (COVID-19 Response and Regional Assistance) Act 2020 (10 of 2020), Transport (Road Passenger Services) Amendment (COVID-19 Response and Regional Assistance) Bill 2020 (176 of 2020) [WA] and explanatory materials available from TimeBase's LawOne service

Family Violence Legislation Reform (COVID-19 Response) Act 2020 (N014), Family Violence Legislation Reform (COVID-19 Response) Bill 2020 and explanatory materials available from TimeBase's LawOne service