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 South Australian Laws

 

Last updated: 26 May 2020

Contents

1. Emergency Management Act 2004 (SA)

1.1 Background

1.2 Directions under the Emergency Management Act

1.3 Freedom of Assembly and the Ten Person Rule

1.4 Penalties under the  Emergency Management Act 2004 (SA)

2. Public Health Act 2011 (SA)

3. COVID-19 Emergency Response Act 2020 (SA) 


1. Emergency Management Act 2004 (SA) 

1.1 Background

Once a state of major emergency is declared under section 23(2) of the Emergency Management Act 2004 (SA), the State Co-ordinator or an authorised officer is empowered to exercise the emergency powers listed in section 25 of the Act, which includes the power to make Directions.  These authorised officers include police officers and any other persons whom the State Co-ordinator appoints, per section 3 of the Act. The state of major emergency expires on 30 May 2020.

1.2 Directions under the Emergency Management Act

The following Directions have been made under Section 25 of the Emergency Management Act 2004 (SA):

Emergency Management (Appropriate Surgery During COVID-19 Pandemic No 4) (Revocation) Direction 2020: This direction revokes the Emergency Management (Appropriate Surgery During COVID-19 Pandemic No 4) Direction 2020 made 27 April 2020. From Thursday 14 May 2020, South Australia will recommence elective surgery procedures in the public and private health systems. Elective surgery was prviously on hold so SA hospitals were ready to manage any increase in COVID-19 cases. The restrictions are being lifted to allow SA Health public hospitals to prioritise surgery based on clinical decisions for the most urgent need and those whose procedures are overdue. Private hospitals will also be able to recommence all elective surgery based on their priority assessments.

Non-Essential Business and Other Activities (No 7): This direction replaces and revokes the Emergency Management (Non-Essential Business and Other Activities No 6) (COVID-19) Direction 2020. The direction came into effect on 22 May 2020 and generally eases restrictions relating to non-essential business and other activity in South Australia. Amongst other things, restaurants and cafes can have a maximum of 10 patrons indoors and 10 patrons outdoors, and swimming pools can now open to the general public with a maximum of 20 swimmers per pool. Businesses that are licensed to sell alcohol for consumption on the premises in South Australia can now open to supply food and beverages if they follow new restriction guidelines.

Emergency Management (Residential Aged Care Facilities No 4) (COVID-19) Direction 2020 (SA): This direction replaces the Emergency Management (Residential Aged Care Facilities No 3) (COVID-19) Direction 2020.  It limits those who can enter and remain in aged care facilities to residents; employees or contractors of the facility; to provide goods and services that are necessary for the operation of the facility; to provide health, medical or pharmaceutical services to a resident; to provide a care and support visit to a resident; to provide end of life support for a residence; for emergency management or law enforcement; for regulatory functions or duties; or legal practitioners to provide legal advice or services. A person is prohibited from entering an aged care facility if they have been a place outside SA 14 days prior, if they have a high temperature, are under the age of 16 or have not been vaccinated against the 2020 seasonal influenza.

Emergency Management (Cross Border Travel No 4) (COVID-19) Direction 2020 (SA): This direction replaces the Emergency Management (Cross Border Travel No 3) (COVID-19) Direction 2020 (SA) made on 16 April 2020. This direction requires 'essential travellers’ (who are exempt from quarantining requirements under paragraph 4 as defined in Schedule 1 of the direction) to keep records of close contacts for a period of 14 days from their arrival in South Australia.

The Emergency Management (COVID-19) (Isolation following Diagnosis or Close Contact) Direction 2020: which requires persons diagnosed with COVID-19 to isolate at a suitable premises or facility and remain there unless obtaining medical care/supplies, if there is an emergency, or for an approved reason. Another person who has had or is likely to have close contact with a diagnosed person must follow an authorised officer’s directions.

The Emergency Management (Continuation of Overseas Travel Self-Quarantine) (COVID-19) Direction 2020: which continues the quarantine arrangements for certain overseas arrivals that were in place before the revocation of a prior direction.

The Emergency Management (Gatherings No 3) (COVID-19) Direction 2020: This direction revokes and replaces the Emergency Management (Gatherings No 2) Direction 2020. Under this direction, it is an offence for a person to organise or attend indoor or outdoor gatherings if they contain more than 10 persons. Gatherings of 10 or less persons are prohibited if the attendees exceed one person per 4 square meters. There are certain excepted gatherings. The  list of excepted gatherings has been expanded to include gatherings of members or office bearers of a council, council committee and other persons engaged in official duties at a council meeting.

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

1.3 Freedom of Assembly and the Ten person rule

1.3.1 Background

The ‘Emergency Management (Gatherings No 3) (COVID-19) Direction 2020’ of 22 May 2020 was made under section 25 of the Emergency Management Act 2004 (SA) following the declaration of a state of major emergency under section 23(2) of the Act. Under the Direction, a person is prohibited from attending a prohibited gathering, organising a prohibited gathering, or (if they own, control or operate a premises), allow a prohibited gathering to occur on that premises.  A person who is present at any gathering (even one that is permitted) is also directed to use their best endeavours to comply with the social distancing principles, having regard to all the circumstances.  

A prohibited gathering is one of more than 10 persons, or a gathering of 10 persons or less where there is not at least 4 squares metres of space per person. 

1.3.2 Exceptions

A prohibited gathering is not a gathering:

- at an airport that is necessary for the normal business of the airport; or

- for the purposes of or related to public transportation, including in vehicles or at public transportation facilities such as stations, platforms and stops; or

- at a medical or health service facility that is necessary for the normal business of the facilities; or

- for the purposes of emergency services; or

- at a disability or aged care facility that is necessary for the normal business of the facility; or

- at a prison, correctional facility, training centre or other place of custody; or

- at a court or tribunal; or

- at Parliament for the purpose of its normal operations; or

-for members or office bearers of a council, council committee or subsidiary of a council and other persons working or otherwise engaged in official duties at an ordinary or special meeting of the council, council committee or subsidiary; or

- at a food market, supermarket, grocery store, retail store or shopping centre that is necessary for the normal business of those premises; or

- at an office building, factory, laboratory or testing facility, repair or maintenance premises (such as a vehicle mechanic workshop), mining site or construction site or waste disposal or processing facility that is necessary for the normal operation of those premises; or

- on land or a vessel used in the production or treatment of primary produce (within the meaning of the Primary Produce (Food Safety Schemes) Act 2004) that is necessary for normal operations on the land or vessel; or

- at a school, university, educational institution or childcare facility that is necessary for the normal business of the facility; or

- at a hotel, motel or other accommodation facility that is necessary for the normal operation of accommodation services; or

- at a place where persons are present for the purposes of transiting through the place; or

- specified as exempt from this direction by the State Co-ordinator (or authorised officer) in writing; or 

- delivered by an operator who has a social distancing policy approved in writing by the State Co-ordinator (or authorised officer).

1.4 Penalties under the  Emergency Management Act 2004 (SA)

1.4.1 Penalties for breach of a Direction

Under section 28 of the Emergency Management Act 2004 (SA), it is an offence for a person to fail or refuse to comply with a Direction without reasonable excuse during a declared major emergency, major incident or disaster.

The maximum penalty is as follows:

- for individuals is $20,000; and

- for a body corporate is $75,000. 

Each director and the manager of the body corporate is guilty of an offence and liable to the penalty for individuals, unless they each prove that they could not by the exercise of due diligence have prevented the offence. Such a person can be convicted even if the body corporate itself has not been convicted.

If the offence is expiated, the fee is:

- $1,000 for an individual; and

- $5,000 for a body corporate. 

1.4.2 Expiation of offences (Infringement notices)

Further, in South Australia, there is a mechanism to expiate offences. Per section 5 of the Expiation of Offences Act 1996 (SA).

If an expiation fee is fixed by or under an Act, regulation or by-law in respect of an offence, an expiation notice may be given under this Act to a person alleged to have committed the offence and the alleged offence may accordingly be expiated in accordance with this Act…. Subject to this Act, if the offence, or offences, to which an expiation notice relates are expiated in accordance with this Act, the alleged offender is not liable to prosecution for that offence or those offences or any other expiable offence arising out of the same incident.”

These can be issued by a member of the police force, a person who is authorised by the Minister or council responsible for the relevant act or a person who is authorised by the Act.

Under the Emergency Management (Expiation Notices) Variation Regulations 2020, a breach of Directions can be expiated as per below. 

4—Insertion of regulation 6

After regulation 5 insert:

6—Authorised officers may give expiation notices

(1) Subject to the Expiation of Offences Act 1996, an authorised officer is authorised to give expiation notices for alleged offences against section 28 of the Act.

(2) The expiation fee for an offence against section 28 of the Act is fixed at --

(a) in the case of a natural person—$1 000; or

(b) in the case of a body corporate—$5 000.

 

2. Public Health Act 2011 (SA)

Under section 57 of the Public Health Act 2011 (SA) 

‘A material risk to public health occurs if the health of 1 or more persons has been, or might reasonably be expected to be, harmed by an act or omission of another, but does not include a case where the harm, or risk of harm, is trivial or negligible.’

A person who causes a material risk to public health can receive a maximum penalty of $250,000 or imprisonment for 5 years or both. Depending on the circumstances, particularly if the offence was reckless or intentional and the person had knowledge of the harm, the penalties can be lower.

Under section 58 of the Public Health Act 2011 (SA):

‘a serious risk to public health occurs if there is a material risk that substantial injury or harm to the health of 1 or more persons has occurred, or might reasonably be expected to have occurred…’

A person who causes a serious risk to public health can receive a maximum penalty of $250,000 or imprisonment for 5 years or both. Depending on circumstances, particularly if the offence was reckless or intentional and the person had knowledge of the harm, the penalties can be lower.

 

3. COVID-19 Emergency Response Act 2020 (SA)

The COVID-19 Emergency Response Act 2020 (SA) makes various temporary modifications of the law of the State in response to the COVID-19 pandemic, to make related amendments to the Emergency Management Act 2004 (SA), the Payroll Tax Act 2009 (SA) and the South Australian Public Health Act 2011 (SA) and for other purposes.

 


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