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Contents
1. Emergency Management Act 2004 (SA)
1.1 Background
1.2 Directions under the Emergency Management Act
1.3 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 22 August 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 on hold so our 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.
Emergency Management (Public Activities No. 7) (COVID-19) Direction 2020: This Direction requires COVID-Safe Plans for defined public activities. Businesses and defined public activities that do not currently have a COVID-Safe Plan must complete a plan before they can commence. A defined public activity includes onsite purchase and consumption of food or beverages (whether occurring in an indoor or outdoor area); sport (including sports training), fitness or recreation activities; indoor public meetings; ceremonies; weddings (including wedding ceremonies and receptions); funeral services (including a wake); provision of personal care services; provision of public entertainment; provision of recreational transport; the operation of a nightclub; the operation of relevant licensed premises; the operation of a casino or gaming area (within the meaning of the Gaming Machines Act 1992); auctions and inspections of premises for the purpose of sale or rental of any property; or driver instruction.
Residential Aged Care Facilities Direction (No.7) commenced on 14 August 2020. This direction prohibits a person who has undertaken a COVID test and is awaiting the results from entering and remaining on the premises of a residential aged care facility. Further, from 27 August 2020: a person who provides nursing, medical, allied or personal care services to a resident must wear appropriate PPE at any time they cannot maintain a distance of more than 1.5 metres; and residential aged care facilities must have a Workforce Management Plan and a COVID-19 Infection Control Plan.
Emergency Management (Cross Border Travel No 11) (COVID-19) Direction 2020: These directions apply to interstate and overseas arrivals and contain restrictions on visitors from Victoria. This new direction bans Victorians from entering South Australia unless they can apply under a different category of Essential Traveller. Exemptions for travel into South Australia from Victoria apply for the purposes of undertaking year 11 or year 12 high school education in SA or undertaking agricultural/primary industry work at a location in VIC which is situated at or near the SA border and that is accessible without stopping in any township or built-up area. If you are entering from VIC you cannot travel further than 40 kilometres over the border into South Australia. If you are entering from NSW you cannot travel further than 50 kilometres over the border into South Australia.
Emergency Management (COVID-19) (Isolation Following Diagnosis or Close Contact) Direction 2020: This direction requires that if any person is diagnosed with COVID-19 or has come into close contact with someone who currently has COVID-19 then that person must follow the direction to isolate and segregate themselves from other people. During this process, the person may be contacted by a member of the Communicable Diseases Control Branch of the Department of Health and Wellbeing. They will be given information and instructions to help them through this process.
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.
Each Direction expires at the time specified in the Direction unless extended.
1.3 Penalties under the Emergency Management Act 2004 (SA)
1.3.1 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.
1.3.2 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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