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At a State (SA) and Federal Government (Cth) level, the COVID-19 “Coronavirus” crisis has been deemed a public health emergency.

In doing so, at both levels, each government has announced that it intends to use powers provided to them in managing the response to the coronavirus outbreak. There is a lot of uncertainty as to what this means from a legal perspective – and particularly in the criminal jurisdiction.

The laws that govern the powers are:

  1. SA legislation – Public Health Act (SA) 2011
  2. Commonwealth Legislation – Biosecurity Act (Cth) 2015

A declaration was made under Public Health Act in SA which gives specific powers to the executive in dealing with this matter and powers it can confer on enforcement agencies. It is understood to be the first time such a step has been taken COVID-19 has also been deemed to be a “listed human disease” under the Biosecurity Act (Cth) and understood to be a notifiable condition under Public Health Act.

Both State and Federal legislation give extensive powers to the executive and their authorised agents, which may include police, to:

  • Obtain contact information and health details
  • Undergo risk-minimisation interventions (including decontamination) and/or medical treatment
  • Restrict an individual’s behaviour and movements
  • Require an individual to isolate from the community for specified periods.

Control orders can be imposed on individuals who pose a risk – and if a person does not consent to a control order, the director (being the Director of Biosecurity – who is the Agriculture Secretary) may require them to comply. In some cases, if they refuse, a person may be detained by police.

The basis for need, in some circumstances, be a reasonable belief.

Such breaches can carry with them criminal prosecution. Under Federal legislation it is up to 5 years imprisonment and fines, whereas at a State level, fines can be imposed (max. $25,000) in certain cases.

Certain offences arise for breaches of general public health obligations. Such as, a person must not cause a material risk to public health intentionally, recklessly or otherwise which may cause harm. If a person does so, it may attract a term of imprisonment. (s57)

The Biosecurity Act does ensure the requisite powers are only exercised where warranted and for a reasonable period. There, in addition, is an inbuilt right for judicial review of certain decisions under the Act.

If you are spoken to by police in respect to any criminal matter under either Act as noted above, contact one of our solicitors for legal advice.

Self Isolation Obligations

As reported by the media, SA Premier Mr Marshall has stated that people who were NOT adhering to self-isolation obligations could expect to come under increased police pressure this week.

“If someone is given an order, that order from Border Force or SA Health is given directly to SA Police to monitor it,” he said.

“If people fail to do it they can actually be arrested and put into custody. People might think that there’s just an on-the-spot fine.

“Fines are put in place but the police also have the power to put people in custody if they are putting the public health at risk.”

Things To Know

Although police have the ability to detain persons contravening government directions under the Biosecurity Act, it is to only be done so with a reasonable belief that a contravention has occurred.

At all times we remind people to be polite and courteous particularly in this time of uncertainty. If you are spoken to by police and have concerns, please contact one of our solicitors on (08) 8110 7900.

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