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The Premier of SA on 22 March, on advice, declared an Emergency for the State of South Australia, pursuant to the Emergency Management Act (SA) 2004. This declaration supersedes that of the Public Health Act and has delegated authority to the Commissioner of Police as the State Coordinator (s14).

State Of Emergency Implications

The purpose of the Act itself is to establish an emergency framework for the State that promotes prompt and effective decision making associated with the emerging emergency and make provisions for comprehensive action.(s2)

A State Emergency Management Plan (SEMP) is in force, outlining the strategies for dealing with emergencies in so far as prevention, containment and mitigation as to disruption across the State (s5A).

An emergency as previously discussed means an event that causes or threatens to cause

  • the death of, or injury or other damage to the health of, any person; or
  • the destruction of, or damage to, any property; or
  • a disruption to essential services or to services usually enjoyed by the community; or
  • harm to the environment, or to flora or fauna;

Of note – this not limited to naturally occurring events like fires or floods, but also epidemics and pandemics like COVID-19.

The State Co-ordinator, has a number of powers to manage and coordinate the response in accordance with the Act and the SEMP, particularly in a circumstance where it has been declared a major emergency (which a Public Health Incident, as previously declared in the Public Health Act, is) (s14 and 24A)

Under Division 4 of the Act – there are a number of powers exercisable by the State Co-Ordinator and their authorised officers including but not limited to:

  • Prohibit the movement of people or animals.
  • Entering buildings and vehicles and take possession or control over land, structures and various other things

And importantly

  • direct a person to remain isolated or segregated from other persons or to take other measures to prevent the transmission of a disease or condition to other persons; and
  • require a person to furnish such information as may be reasonably required in the circumstances

It is important that the public understands their rights and obligations under the Act, and so it is to be noted that it is an offence to contravene the requirements of the State Co-Ordinator.

Failure to comply without reasonable excuse can carry with it a $20,000 maximum fine for a natural person.

Importantly, notwithstanding such, Police would still have the power to detain an individual if they are at risk to the health and safety of others. (s28)

(Maximum penalty: (a) if the offender is a body corporate—$75 000; (b) if the offender is a natural person—$20 000.)

Furthermore, a person must not hinder or obstruct operations carried out in accordance with the Emergency Management Act, otherwise again, they may be prosecuted. (s29)

(Maximum penalty: $10 000)

As stated above, an authorised officer may direct a person to provide information such as full name and place of residence. A failure to do so is an offence, as it was under the Public Health Act. A person failing to comply with this direction without reasonable excuse may be fined. An authorised officer, however, must only do so where they reasonably suspect that person has committed or is committing / about to commit and offence against this Act. (s31)

(Maximum penalty: $5 000.)

As a reminder, these additional powers and measures are in line with and on top of those outlined in the Public Health Act and, at a federal level, the Biosecurity Act.

All Act’s outline the possibility of criminal sanctions for non compliance, including imprisonment.

These are unprecedented times, but we are here to help where we can be of help. It is important that at all times you remain polite and courteous if spoken to by authorised personnel, particularly at this time of uncertainty.

If you are spoken to by police and have concerns, please contact one of our solicitors on (08) 8110 7900.

Section 25

(1) On the declaration of an identified major incident, a major emergency or a disaster under Division 3, and while that declaration remains in force, the State Co-ordinator must take any necessary action to implement the SEMP and cause such response and recovery operations to be carried out as he or she thinks appropriate.

(2) Without limiting or derogating from the operation of subsection (1), but subject to the regulations, the State Co-ordinator or an authorised officer may, if of the opinion that it is necessary to do so, do or cause to be done all or any of the following things:

(a) enter and, if necessary, break into any land, building, structure or vehicle (using such force as is necessary);

(b) take possession of, protect or assume control over any land, body of water, building, structure, vehicle or other thing;

(ba) remove or destroy, or order the removal or destruction of, any building, structure, vehicle, vegetation, animal or other thing;

(bb) carry out, or cause to be carried out, excavation or other earthworks;

(c) construct, or cause to be constructed, barriers, buildings or other structures;

(ca) subject a place or thing to a decontamination procedure;

(d) direct the owner of, or the person for the time being in charge of, any real or personal property to place it under the control or at the disposition of a specified person;

(e) remove, or cause to be removed, to such place as the State Co-ordinator or authorised officer thinks fit, any person or animal, or direct the evacuation or removal of any person or animal;

(f) direct or prohibit the movement of persons, animals or vehicles;

(fa) direct a person to submit to a decontamination procedure;

(fb) direct a person to remain isolated or segregated from other persons or to take other measures to prevent the transmission of a disease or condition to other persons;

(fc) direct a person to undergo medical observation, examination (including diagnostic procedures) or treatment (including preventative treatment);

(g) remove flammable material or any other hazardous material or cause flammable material or any other hazardous material to be removed from any place, building or structure;

(h) cause any supply of fuel or other flammable liquid, any gas or electricity or any other hazardous material to be connected, reconnected, disconnected or shut off;

(i) direct a person who is in a position to do so— (i) to stop any work or operation; or (ii) to close any premises or other place; or (iii) to contain the escape of any hazardous material, or to nullify the effects of the escape of any hazardous material; or (iv) to shut off or remove any plant, equipment, apparatus or device or to perform any operation in relation to any plant, equipment, apparatus or device;

(j) connect, disconnect, reconnect, shut off or cut off the supply of water or any drainage facility;

(k) make use of the gratuitous services of any person;

(ka) require a person to furnish such information as may be reasonably required in the circumstances (other than information that may be required to be furnished under section 6 of the Essential Services Act 1981);

(l) remove to such place as he or she thinks fit any person who obstructs or threatens to obstruct response or recovery operations;

(m) direct, insofar as may be reasonably necessary in the circumstances, any person (other than a control agency or other person referred to in paragraph

(n)) to assist in the exercise of any power under this section;

(n) in the case of a major emergency or disaster—give directions to any control agency or person whose responsibilities require him or her to engage in response or recovery operations, or who is so engaged;

(o) exercise any prescribed power.

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