There has been significant media coverage in recent weeks about changes to legislation in the Parliament which deals with the State’s ongoing response to COVID-19.

As with anything related to the pandemic, it captures the public’s attention significantly. However, given the relative speed at which the changes have become law and therefore the limited time to consider and evaluate potential consequences, their full impact may not yet be fully realised.

This explainer seeks to respond to some likely questions about how the State’s approach to COVID-19 has changed in recent weeks, with the end of the state of emergency and ongoing pandemic management via the South Australian Public Health Act 2011 (SA).

From a legal standpoint, how has the situation changed with respect to the State’s ongoing response to COVID-19?

The two key pieces of legislation to keep in mind are the Emergency Management Act 2004 (SA) (“the Emergency Management Act”) and the South Australian Public Health Act 2011 (SA) (“the Public Health Act”).

Back in March 2020, as a result of the unfolding pandemic situation, Police Commissioner Grant Stevens declared an emergency under the Emergency Management Act. This Act confers significant power on the Police Commissioner to declare an emergency and, during an emergency, make broad-ranging directions by which the general public is required to comply.

Prior to 24 May 2022 the State’s ongoing COVID-19 response, which included the many restrictions on our day to day lives, was managed under the Emergency Management Act. This means the lockdowns, density caps, isolation/quarantine requirements and CovidSAfe Check-in were all technically enabled by this important piece of legislation.

This state of emergency was ended on 24 May 2022 and the ongoing management of the pandemic was transferred to the Public Health Act, which is South Australia’s primary public health legislation. This Act was amended for this purpose by the State Parliament in May, leading up to the end of the declared emergency, noting the Government had committed to doing so.

Practically, this means that although there is a direction which has implications for the daily lives of many South Australians (though to a lesser extent than previous directions), the declared emergency and the Police Commissioner’s extraordinary powers are no more. Now the Governor, rather than the Police Commissioner, will make the directions into the future as advised by the Emergency Management Council, being a sub-committee of Cabinet.

What does the new legislation do?

The South Australian Public Health (COVID-19) Amendment Bill inserts Part 11A into the Public Health Act.

This provides the Governor with the power to enforce directions relating to

• individuals who have tested positive to COVID-19; and
• “close contacts” as defined within the direction.

As a result of this, the scope of directions (which are made by the Governor and not the Police Commissioner) has narrowed significantly because they can only relate to the two categories above.

But it is also important to remember that until this point in time, all directions have been made pursuant to an unprecedented and temporary declared emergency, rather than via public health legislation

So, is the emergency situation over?

Sort of.

While the declared emergency under the Emergency Management Act has expired, the most recent direction made under that Act still applies. The Emergency Management (COVID-19 Requirements) (Consolidated Measures) Direction 2022 came into effect on 23 May 2022 and was made in the context of a declared emergency under the Emergency Management Act. The following day, the state of emergency (and the ability to make such directions), expired.

The previous direction remains in force under the amended Public Health Act, despite likely exceeding the scope of directions permitted under that Act (which must relate to COVID-19 positive and close contacts). The arrangements made by the current direction which appear to be beyond that scope include:

• mandatory mask wearing in certain circumstances;
• obligations for certain places to have in place a COVID Safe Plan; and
• obligations for some places to use an approved contact tracing system and records.

While the emergency situation is certainly over from a technical perspective, practically, the same arrangements that were in place at the time the emergency declaration was about to expire apply now and can continue to apply for a maximum period of six months. The penalties for refusing, or failing to comply with a direction appear to replicate those in the Emergency Management Act.

Should broad ranging directions (such as mask wearing) be required after six months has elapsed, the amended Public Health Act may not be sufficient to manage the pandemic. It could be necessary in such circumstances to further amend legislation, or revert to the Emergency Management Act and declare another emergency under that Act to manage the ongoing pandemic situation.

How can a direction made under the declared emergency (which has now lapsed), be retained under the new arrangements?

This is the result of the transitional provisions for the amendments to the Public Health Act, which ensure a relevant direction made under the Emergency Management Act, at the cessation of the last relevant emergency declaration, continues in force as a direction under the Public Health Act.

In other words, a direction made under the previous arrangement is effectively validated by the amended Public Health Act and remains in force. However, it can only remain in force for six months, due to a time limit set out elsewhere in the Public Health Act.

Transitional provisions are often included in amended legislation, to ensure a smooth transition for when the changes commence.

How were the amendments to the Public Health Act shaped by Parliamentary debate?

Some significant amendments were made to the Bill in the Legislative Council to include some more oversight and transparency in the amendments to the Public Health Act. The changes included:

• clarification as to which existing principles within the Public Health Act apply to the new COVID-19 arrangements incorporated in the Public Health Act by the Bill;
• the establishment of the COVID-19 Direction Accountability and Oversight Committee, being a Parliamentary Committee tasked with oversight of directions made under the new arrangements; and
• the rights of a person to apply for review of a direction made under the amended Public Health Act if it is a direction to isolate or quarantine at a place other than their place of residence or another location chosen by that person.

What does the Law Society think of these amendments and, subsequently, the finalised amendments to the Public Health Act?

The Society had provided a submission, at the request of the opposition, in relation to the Bill shortly after it was tabled in Parliament.

The general theme of the Society’s initial position on the amendments to the Public Health Act was that the scope of some of the changes proposed was concerningly opaque. Much of this lack of clarity lay in the open-ended definition of “close contact”, which would be subject to change as per each direction issued under the new arrangement. As an example, the definition of “close contact” has changed significantly over the preceding year and had, less than six months ago, included a person who had simply attended a listed exposure site at a particular time. The significant implications of a fluid definition of “close contact” are obvious when read in this light, with the potential for the amended Act to interfere with the lives of South Australians being subject to significant variation.

The Society was also concerned at the transitional provisions which (as was demonstrated shortly afterwards) enabled a former direction to be validated and maintained under the amended Public Health Act, despite the fact that it may be beyond the terms of what it would permit.   

The importance of the principles already set out in the Public Health Act was emphasised by the Society, as was the need for some sort of oversight mechanism for directions made under the amended Public Health Act.

Parliamentary debate, particularly in the Legislative Council, was monitored by the Society with interest and the Society generally welcomes the amendments made to the Bill in the Legislative Council.

The imposition of the COVID-19 Direction Accountability and Oversight Committee provides an oversight mechanism and is a welcome addition. This Committee is independent of Executive government, given that it is composed of members of the legislature. It has an entirely different structure to the Emergency Management Council.

Similarly, the introduction of a right of review of any directions made (via the Magistrates’ Court and District Court) is a positive inclusion. The Society notes however that the South Australian Civil and Administrative Tribunal is the forum where most Government decisions are reviewed as its flexible approach to litigation and lower costs make it a suitable option for many matters.

Overall, the Society’s preference was at the outset and remains for a full review of the Emergency Management Act with a view to enacting legislation that deals with pandemics and other prolonged emergency situations into the future.   

JUSTIN STEWART-RATTRAY, PRESIDENT, LAW SOCIETY OF SA