The COVID Law Monitor project covers changes in legislation, directives and emergencies powers that affect civil liberties and freedoms of people in Australia across all jurisdictions. There have been significant changes in legislation and policy in other areas such as social security, taxation and economic management and industry, and while important, these changes fall out of scope of this project. 


New and Amended Australian Capital Territory Laws

 

Last updated: 16 May 2020

Contents

1. Public Health Act 1997 (ACT) 

1.1 Background

1.2 The Public Health (Emergencies) Amendment Act 2020 (ACT) 

1.3 Directions under the Public Health Act 1997 (ACT)

1.4 Freedom of Assembly and the Ten Person Rule

1.5 Penalties

2. COVID-19 Emergency Response Act 2020 (ACT)

 

1. Public Health Act 1997 (ACT) 

1.1 Background

The Public Health (Emergencies) Amendment Act 2020 (ACT) amended the Public Health Act 1997 (ACT).

A declaration of an emergency due to COVID-19 was made under the Public Health (Emergency) Declaration 2020 (No 1). The emergency declaration has been repeatedly extended with the current declaration effective until 7 July 2020. 

Further, the COVID-19 Emergency Response Act 2020 (ACT) came into effect on 8 April 2020, amending a range of Acts, as summarised below.

1.2 The Public Health (Emergencies) Amendment Act 2020 (ACT) 

This Act allows an emergency declaration to come into force immediately (previously it was ‘on the day’). A COVID-19 Declaration is added in the Act. The Act also provides for the power to extend a COVID-19 Declaration for up to 90 days. Other declarations remain only able to be extended for 2 days. A COVID-19 Declaration must be revoked if the Minister, on advice from the Chief Health Officer, decides that the declaration is no longer justified. After 30 days of an extension, the Chief Health Officer must advise the Minister every 30 days about the status of the emergency and whether the Declaration is justified.

Section 120(1)(f) was inserted into the Public Health Act 1997 (ACT) allowing the Chief Health Officer to direct the occupier of property to place the property under the control or disposal of the Chief Health Officer. This particular direction must be given in writing and takes effect immediately after it is given, unless otherwise directed.

Currently, an emergency declaration can only remain in force initially for 5 days and then be extended (and further extended) by up to 2 days each time.  Section 120 allows the Chief Health Officer to take any action or give any direction (orally or in writing) they consider necessary or desirable to alleviate the emergency.

1.3 Directions under the Public Health Act 1997 (ACT)

The following Directions remain in force:

Public Health (Emergency) Declaration Further Extension 2020 (No 9), which extends the period during which the emergency declaration is in force for a period of 90 days. 

Public Health (Returned Travellers) Emergency Direction 2020 (No 5), which requires those who have arrived in the Australian Capital Territory following a flight from overseas to travel directly to a designated premises and to reside in those premises until clearance form quarantine is given by an authorised medical officer. A person is exempt from this requirement if they are a member of an international flight crew, or have undergone 14 days quarantine in another Australian state or the Northern Territory. 

Public Health (Residential Aged Care Facilities) Emergency Direction 2020 (No 2), which prevents a person from entering or remaining on the premises of a residential aged care facility unless they fall within the list of excepted persons. The exceptions include employees or contractors of the facility, providers of goods or services that are necessary for the effective operation of the facility, healthcare providers, care and support providers to residents of the facility, emergency management or law enforcement, or the person’s presence at the premises is in the person’s capacity as a prospective resident of the facility. Even where a person falls within one of the listed exceptions, they must not enter or remain on the premises of a residential aged care facility if: during the 14 days immediately preceding the entry, the person arrived in Australia from a place outside of Australia or had known contact with a person who has a confirmed case of COVID-19, or the person has a temperature higher than 37.5 degrees celsius or symptoms of acute respiratory infection, or the person does not have an up to date vaccination against influenza. A person aged under 16 years is generally also not allowed. 

The Public Health (Self-Isolation) Emergency Direction 2020, which requires those diagnosed with COVID-19 to travel directly to a hospital for treatment or to a premises that is suitable for the person to reside in until they are given clearance by an authorised medical officer. They must not leave the premises except to obtain medical care or medical supplies, in an emergency situation or in limited outdoor circumstances where it is possible to avoid close contact with other persons and not to enter any other buildings. A diagnosed person must also communicate their diagnosis to any person to whom they come into contact with until being cleared by an authorised medical officer. They must also comply with any request by a police officer of member of the ambulance service to produce proof of identification. 

Public Health (Closure of Non-Essential Business or Undertaking) Emergency Direction 2020 (No 6) (ACT). This direction revokes and replaces the Public Health (Closure of Non-Essential Business or Undertaking) Emergency Direction 2020 (No 5). It requires a person who owns, controls or operates a non-essential business or undertaking to cease operating, unless they can operate in a way that no more than 2 people enter their premises and social distancing of 1 person per 4 square metres is observed. This does not prohibit the operation of a non-essential business or undertaking that operates solely on an online or virtual basis (for example, a streaming service), or through delivery, take-away or pickup services. If a person fails to comply with this direction, an authorised person may direct a person to do such things that are reasonably necessary to comply with this direction, including requesting to produce proof of identification. If a person fails to comply, the authorised person may take all reasonable steps to enforce compliance. This direction eases restrictions to allow indoor funerals to have up to 20 attendees and outdoor funerals to have up to 30 attendees.

The Public Health (Non-Essential Gatherings) Emergency Direction (No 3) 2020. This direction revokes and replaces thePublic Health (Non-Essential Gatherings) Emergency Direction (No 2).  It prohibits more than 10 persons who are not ordinarily resident at a residential premises to enter and remain in a premises. They must also ensure social distancing of 1 person per 4 square metres. There are exceptions for medical care and medical supplies, law enforcement, emergency services, other emergency situations, necessary care or support or carrying out urgent or essential repairs. A person must not organise or attend a gathering of more than ten people in an outdoor space unless they are from the same household. Funerals and weddings are exempt if they comply with the Public Health (Closure of Non-Essential Business or Undertaking) Emergency Declaration 2020 (No 4). A person who owns, controls or operates premises in the Australian Capital Territory must take reasonable steps to not allow a gathering to occur on premises and must not organise or attend a gathering on the premises. An authorised person may direct a person to do such things that are reasonably necessary to comply with this direction, including requesting to produce proof of identification. If a person fails to comply, the authorised person may take all reasonable steps to enforce compliance.

Each Direction expires at the time specified in the Direction, unless extended. 

1.4 Freedom of Assembly and the Ten Person Rule 

1.4.1 Background

The ‘ten person’ rule is implemented in the Australian Capital Territory via the Public Health (Non-Essential Gatherings) Emergency Direction 2020 (No. 3) made under section 120 of the Public Health Act 1997 (ACT).

Under the Direction, it is prohibited for more than 10 persons to be present in a residential premises that they are not ordinarily residents of. Social distancing of 1 person per 4 square metres must be observed. This direction permits certain gatherings of up to 10 people in outdoor areas (see paragraphs 2 and 4) including boot camps, picnics, house inspections and auctions.

1.4.2 Exceptions

1. For medical care and providing medical supplies;

2. Law Enforcement Operations;

3. Emergency Services; 

4. In the event of other emergency situations;

5. To provide necessary care or support; and

6. Carrying out urgent or essential repairs.

A person must not organise or attend a gathering of more than ten people in an outdoor space unless they are all ordinarily resident at the premises. Funerals and weddings are exempt if they comply with the Public Health (Closure of Non-Essential Business or Undertaking) Emergency Declaration 2020 (No 4).

For other premises, no gathering of more than 10 people can occur, subject to exceptions within the Direction.

An authorised person may direct a person to do such things that are reasonably necessary to comply with this direction, including requesting to produce proof of identification.  If a person fails to comply, the authorised person may take all reasonable steps to enforce compliance.

1.5 Penalties

Under section 120 of the Public Health Act 1997 (ACT), failing to comply with a direction without a reasonable excuse has a maximum penalty of $8,000 for individuals.  In the case of a body corporate the maximum penalty is $40,500.  In the case of a utility that is a body corporate the maximum penalty is $1,620,000.

Under section 121, an authorised person is the chief health officer, authorised public health officer, member of the ambulance service, a police officer or any person authorised by the chief health officer. These authorised persons have emergency powers to enter and use reasonable force to prevent harm to a person, prevent access to any place, close pedestrian or vehicle traffic and remove a person obstructing an authorised person.

 

2. COVID-19 Emergency Response Act 2020 (ACT)

The Act requires that, for each month that a COVID-19 declaration is in force, the responsible Minister for a COVID-19 measure must prepare a report for the Legislative Assembly on the application of the measure. 

The COVID-19 Emergency Response Act 2020 (ACT) introduced amendments to various other Acts as follows:

Children and Young People Act 2008 (ACT)

A definition for ‘COVID-19 emergency’ has been added, along with an expiry provision of 12 months for all amendments.

The Director-General may declare an emergency exists in relation to a detention place for the length of the COVID-19 emergency. If one or more declarations are in force for a consecutive period of 28 days or more, the Director-General must review them at least every 28 days. A declaration must be be revoked if the Director-General no longer believes there are reasonable grounds for the declaration.

The Director-General may give a young detainee a written permit to be absent from a detention place, and to be in another place in the ACT, because of the COVID-19 emergency under certain conditions. The Director-General may also give a young detainee an interstate leave permit if the purpose of the leave is related to the COVID-19 emergency.

In respect of the length of emergency action for a child or young person, the Director-General may apply to the Children's Court for an extension of the period of daily care if the period is likely to end during the COVID-19 emergency period or during the 6 months following the COVID-19 emergency period. 

A person will not be found to have contravened a care and protection order under section 423 if the contravention happened during or up to 3 months after the COVID-19 emergency period and it was not reasonably practicable for the person to comply with the order because of the COVID-19 emergency, with the person needing to prove this.

The Children’s Court may extend an assessment order for any period during the COVID-19 emergency period.

Carer approvals are extended until 6 months after the day the COVID-19 emergency period ends.

Corrections Management Act 2007 (2007)

A ‘COVID-19 emergency’ definition has been added. If an emergency is declared in a correctional centre in relation to COVID-19, the declaration can only last during the COVID-19 emergency. Every 28 days, the Director-General must review and as soon as possible advise the minister of the reasonable grounds and any measures taken under the emergency. They must also include information in the Annual Report and revoke the emergency once they believe there are no longer reasonable grounds.

There are also changes to the leave permits which are able to be granted for 28 days or in the case of medical care, they cannot be granted for longer than 3 months. These can be cancelled if the detainee breaches a condition or leave is no longer needed.

Crimes (Sentence Administration) Act 2005 (ACT)

Intensive correction orders: under section 47A, if an offender fails to report to do community service work and this happens due to the COVID-19 emergency, the offender is taken to have done the community service work, with the hours decided by the Director-General. Section 64(3A) provides that the maximum number of 3 warnings for non-compliance does not apply during a COVID-19 emergency period.

Good Behaviour Orders: under section 92A, if an offender fails to report to do community service work due to the COVID-19 emergency, the offender is taken to have done the community service work, with the hours decided by the director-general.

During the COVID-19 emergency, the board may refuse to make a parole order for an offender if they are satisfied that the application has no reasonable prospects of success. If so, the board must give the offender written notice and reasons. If after 14 days the offender requests a hearing, they must then set a hearing.

Under section 127, when scheduling a hearing during a COVID-19 emergency, the board may give the offender less than the prescribed 7 days to let the board know that they will appear at the hearing and/or be making submissions. The board must be satisfied that this is in the public interest and the offender understands the impact.

During a COVID-19 emergency, under section 182(2A)-(2B) the board may be made up of only 1 judicial officer. Previously it was 3 members, with 1 being a judicial officer. Similarly, the quorum of all 3 members being present is not required if necessary.

Crimes (Sentencing) Act 2005 (ACT)

An offender may sign an undertaking to comply with their good behaviour obligations. During a COVID-19 emergency, such an undertaking may be signed or given before the court and if given before the court, must be recorded by the court.

Evidence (Miscellaneous Provisions) Act 1991 (ACT)

This adds a regulation making power, allowing a regulation to make provisions in relation to the following matters for the purpose of responding to COVID-19:

- permitting the recording of witness evidence;

- how evidence may be given and recorded;

- how evidence may be used; and

- related procedural matters.

Family Violence Act 2016 (ACT)

Under section 206, a general interim order ending, or likely to end during a COVID-19 emergency may be extended by the court for a maximum period of 6 months. 

If there is a requirement or an issue conditional on a party or their legal representation to be present in a proceeding, they may be present by telephone or other audio visual means unless the court otherwise orders. Similarly, consent under the act can be given in these ways too.

Previously, if a person was present when a family violence order was made then it was an offence to contravene that order. The amendment now makes it an offence to contravene an order if only the person’s legal representation was present when the order was made. The offence of contravening a family violence order after being personally served it remains unchanged.

During a COVID-19 emergency, an undertaking may be signed or given before the court and if given before the court, must be recorded by the court.

Firearms Act 1996 (ACT)

Under section 417, to respond to the COVID-19 emergency, the Minister for Police and Emergency Services may make a declaration preventing the issuing of a firearms licence, permit to acquire a firearm, prohibiting or limiting the sale of firearms, parts or ammunition.

The following legislation has also been amended:

Financial Management Act 1996 (ACT)

Gaming Machine Act 2004 (ACT)

Gaming Machine Regulation 2004 (ACT)

Long Service Leave Act 1976 (ACT)

Long Service Leave (Portable Schemes) Act 2009 (ACT)

Medicines, Poisons And Therapeutic Goods Regulation 2008 (ACT)

Official Visitor Act 2012 (ACT)

Personal Violence Act 2016 (ACT)

Prohibited Weapons Act 1996 (ACT)

Supreme Court Act 1933 (ACT)

Working With Vulnerable People (Background Checking) Act 2011 (ACT)

 


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