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 Western Australian Laws 

 

Last updated: 28 May 2020

Contents

1. Public Health Act 2016 (WA)

1.1 Background

1.2 Emergency powers under the Public Health Act 2016 (WA)

2. Emergency Management Act 2005 (WA)

2.1 Background

2.2 Directions under the Emergency Management Act 2005 (WA)

2.3 Freedom of Assembly and the Ten Person Rule

2.4 Penalties

2.5 New powers under the  Emergency Management Act 2005 (WA)

3.Criminal Code Act 1913 (WA)

4. Family violence legislation Reform (COVID-19 Response) Act 2020 (WA)

5. Local Government Act 1995 (WA)

 

1. Public Health Act 2016 (WA)

1.1 Background

Once the Minister for Emergency Services declared a state of emergency under section 167 of Public Health Act 2016 (WA) (the Act), Directions were able to be made under section 174(2) of the Act.

Once a public health state of emergency is declared, appointed emergency officers may also exercise the emergency powers listed in Part 12 of the Act. 

1.2 Emergency powers under the Public Health Act 2016 (WA)

Emergency officers have the following powers under the Public Health Act 2016 (WA) when a public health state of emergency is in effect:

- To obtain identifying particulars of a person (i.e. their name and address) where reasonably required for emergency management purposes;

- To move and evacuate persons, animals and vehicles in, out or around the emergency area;

- To use any vehicle, or to control or use premises or property of any person for emergency management purposes, subject to certain restrictions;

- To exercise and enforce powers in relation to quarantine, such as directing a person to remain in a specified area or to undergo quarantine or decontamination; and

- Other emergency powers prescribed by the Act.

 

2. Emergency Management Act 2005 (WA)

2.1 Background

The Emergency Management Act 2005 (WA) provides for the coordinated organisation of emergency management in Western Australia. Under the Act, Directions can be made by the Chief Health Officer to respond to emergencies. 

2.2 Directions under the Emergency Management Act 2005 (WA)

The following Directions have been made by the Chief Health Officer:

Closure and Restriction (Limited the Spread) Directions (No. 2): which prohibits gatherings of more than 10 persons in public places, and gatherings of more than 2 persons in any other place (such as a private residence) where there is not at least 4 square metres of space for each person, subject to certain exceptions, such as for members of the same household. This direction also requires certain places of business, worship and entertainment to close, replacing the previous ‘Closure of Certain Places of Business, Worship and Entertainment Directions’ Direction. Note the Closure and Restriction (Elite Athlete Training) Modification Directions exempts certain gatherings from being prohibited, and certain places from being closed, for the purposes of enabling people to engage in certain athletic activities from 2 May onwards.

Isolation (Diagnosed) Directions: these directions affect people who have been informed they have tested positive for or otherwise been diagnosed with COVID-19.  Such persons must isolate until they are informed they are no longer required to isolate. They must truthfully answer questions about their health, follow appropriate infection control measures and comply with instructions and directions given by a relevant officer. 

Quarantine and Isolation (Undiagnosed) Directions: these directions affect three types of people: people that are a close contact of a person with COVID-19; persons tested for COVID-19 who are awaiting their result; and those who develop COVID-19 symptoms while in quarantine. These people must isolate in accordance with these directions.

Quarantine (Closing the Border) Directions: which directs that the WA border will be closed, except to exempt travellers (such as national and state security officials, or health care workers entering by request of the Chief Health Officer). If a person enters WA and is not an exempt traveller, they must leave if they are able to do so. If they are unable to do so, quarantine directions will be issued requiring 14 days of self-isolation. 

Quarantine (Closing the Border) Directions Approval for Transiting Aircraft Passengers (No 2): This approval provides for the terms and conditions under which transiting aircraft passengers may enter Western Australia as exempt travellers under the Quarantine (Closing the Border) Directions.

Remote Aboriginal Communities Directions: which prohibits travel into remote Aboriginal communities. Exceptions include where a person normally resides or works there, for family or cultural purposes, or for providing or accessing essential human services or supplies such as medical care, education and justice related services. 

Visitors to Residential Aged Care Facilities Directionswhich prohibits visits to residential aged care facilities. Exceptions include where a person works at the facility, is there to provide goods or services necessary for the operation of the facility, is there to provide medical or health services, or is there to provide legal services relating to wills and estate planning.    

Rottnest Island Closure Direction: which directs that Rottnest Island is closed to the public, and may only be accessed by non-residents for the purpose of emergency management, law enforcement or providing medical care or supplies. 

2.3 Freedom of Assembly and the Ten Person Rule

2.3.1 Background

The ‘ten person rule’ was implemented by the Closure and Restriction (Limit the Spread) Directions (No 2), coming into effect from 27 April 2020. 

The Direction prohibits gatherings of:

- more than 10 persons in a single undivided indoor space, or a single undivided outdoor public space; and 

- gatherings of two or more persons in a single undivided space, indoors or outdoors, where there is not at least 4 square metres of space for each person at the gathering.

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), allowing a prohibited gathering to occur on that premises. 

This Direction revokes the previous Direction made on 7 April 2020, ‘The Closure and Restriction (Limit the Spread) Direction’, which capped the gatherings described at (a) at two persons.  

2.3.2 Exceptions

A prohibited gathering is not a gathering:

- in a motor vehicle;

- 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, taxis and ride share services; or

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

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

- for the purposes of providing care or assistance (including personal care) to a vulnerable person or providing emergency assistance;

- for the purposes of emergency services; or

- at a prison, detention centre, lock up or other place of custody for the purposes of or related to the operation of that place of custody; or

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

- at a court or tribunal; 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, mining site (including mining site accommodation), construction site or other place of work that is necessary for the normal business of those premises, except premises described in the paragraph below; 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 an outdoor place where a gathering of persons which would otherwise constitute a mass gathering may be present for the purpose of transiting through the place; or

- at an indoor place where a gathering of persons which would otherwise constitute a mass gathering may be present for the purpose of transiting through the place; or

- at an indoor place or an outdoor place where everyone in the gathering is a member of the same household; or

- specified as exempt from this direction by the Chief Health Officer in writing.

2.4 Penalties

- A person who does not comply with a Direction of the Chief Health Officer or emergency officer can be punished with imprisonment for up to 12 months, or liable to pay a fine of up to $50,000.

- A corporation that does not comply with a Direction of the Chief Health Officer or emergency officer can be liable to pay a fine of up to $250,000.

2.5 New powers under the Emergency Management Act 2005 (WA) 

The amendments introduced in the Emergency Management Amendment (COVID-19 Response) Bill 2020 (WA) introduce the following powers:

- The State Emergency Coordinator may direct that a person who is in quarantine be subject to an approved electronic monitoring device if it is satisfied that this is necessary to monitor the person’s location during the quarantine period, which is either to be worn on their person, installed in their house, or implemented in any other reasonable way.

- An authorised officer may enter a place where an approved electronic monitoring device has been installed to retrieve the device at any time. 

A failure to comply with a direction relating to an electronic monitoring device, or an attempt to obstruct an authorised officer or to remove or impede the functioning of an electronic monitoring device, may result in a penalty consisting of 12 months imprisonment or a fine of $12,000. 

 

3.Criminal Code Act 1913 (WA)  

The amendments introduced in the Criminal Code Amendment (COVID-19 Response) Bill 2020 (WA) expand the crime of serious assault against a public officer (such as a police officer or an ambulance officer) to include assaults where the offender at the commission of the offence knows that the offender has COVID-19, or if the offender makes a statement or makes any other act that creates a belief, suspicion or fear that the offender has COVID-19. 

This additional offence applies in the 12 month period beginning on the day the amendment comes into operation, and carries a penalty of 10 years imprisonment.  This is the same penalty as if the offender were armed with a dangerous or offensive weapon or was in the company of other people.

 

4. Family Violence Legislation Reform (COVID-19 Response) Act 2020

The Family Violence Legislation Reform (COVID-19 Response) Act 2020 (the Act) amends the Sentencing Act 1995 (Sentencing Act), the Sentence Administration Act 2003 (Sentence Administration Act), the Bail Act 1982 (Bail Act) and the Restraining Orders Act 1997 (Restraining Orders Act).

The amendments include the following:

- Sentencing Act: the Court may impose electronic monitoring requirements for the purpose of monitoring the location of an offender for ‘Intensive Sentencing Orders’ and ‘conditional suspended imprisonment orders’. A general provision also enables administration by the Department of Justice of approved electronic monitoring, consistent with the approach in the existing legislation; 

- Sentencing Administration Act: similar such amendments to those made to the Sentencing Act were enacted;

- Bail Act: an amendment to widen the definition of ‘approved electronic monitoring device’ was made. Further, section 16A(3) of the Bail Act was deleted, enabling police officers to grant bail for breaches of ‘family violence restraining orders’ or ‘violence restraining orders’ in an urban area. Before the amendment, such grants could only be made in regional areas. 

- Restraining Orders Act: a series of amendments were made 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.

 

5. Local Government Act 1995

The Local Government Amendment (COVID-19 Response) Bill 2020 amends the Local Government Act 1995 to provide a power to the Minister to waive or suspend the operation of any provision of the Act, during the declared state of emergency, to allow local governments to continue to operate and make critical decisions. The amendment also allows a local government to suspend local laws, in whole or part, for the purpose of responding to the direct or indirect impacts of COVID-19. 

This amendment will only have practical application within the period that a COVID emergency declaration, made under section 56 of the Emergency Management Act 2005, is in force. The suspension or revocation of a local law will require an absolute majority of the local government in order to be passed. 

 


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For people who have an experience with the policing of covid measures you would like to report you can do so at this website: covidpolicing.org.au. You can find suggestions for legal support here.