A lot of thought has been given to consider whether the governments response in amending the act to enable a term of imprisonment is appropriate.

The short answer is, it is.

Previous Penalties

Currently, people who breach the laws, such as by entering South Australia from Victoria when not a local or essential traveller, face either an on-the-spot fine of $1,000 or a possible penalty imposed by a court of $20,000.

The breach relates to directions given by the commissioner of police as state coordinator during the pandemic.

Proposed New Penalties

The proposal is to amend s28 imposing a maximum penalty of 2 years jail and/or a fine for breaches of such directions.

The world is currently navigating its way through a pandemic that has seen many lives lost and countless people affected. The necessity to comply with the direction of health professionals through the channels that each state have enforced cannot be understated.

The disregard for directions places the general public at risk but also to the very individuals flouting the laws.

Are These New Penalties Necessary?

This is not to say that immediate imprisonment for all who breach such restrictions is necessary – there will and should always be scope for discretion and the Courts should ordinarily have that unfettered discretion.

But again, the seriousness of what is occurring should not be downplayed and the rules and directions in place should be enforced.

Have These Amendments Come Into Force Yet?

As of this writing, the amendments have not come into force as of yet – but given what is occurring interstate and the increase of people breaching the directions, it appears it will be sooner rather than later.

UPDATE: These amendments have now taken effect and a failure to comply with the direction may result in a term of imprisonment being imposed up to 2 years.

The proposed amendments under the: EMERGENCY MANAGEMENT (QUARANTINE FEES AND PENALTY) AMENDMENT BILL are:

Part 1—Preliminary

1—Short title

This clause is formal.

2—Commencement

The measure operates from assent, except section 5 which operates from 18 July 2020.

3—Amendment provisions

These clauses are formal.

Part 2—Amendment of Emergency Management Act 2004

4—Amendment of section 25—Powers of State Co-ordinator and authorised officers

This amendment provides that a direction or requirement under section 25 must not prohibit travel into or out of the State where the travel is for the purpose of escaping domestic violence or providing support to a family member who is experiencing domestic violence, or is otherwise reasonably necessary for the purpose of dealing with circumstances arising out of domestic violence. A direction may impose conditions on the travel.

5—Insertion of section 25AA

New section 25AA is proposed to be inserted:

25AA—Fees on designated arrivals during declared emergencies

The State Co-ordinator is authorised to require a liable person (which is defined to include a prescribed arrival (being a person who arrived in SA from the commencement of the section) and a designated person (being a person who refused or failed to comply with a direction or requirement to quarantine or isolate and who is directed to reside at a place determined by an authorised officer)) to pay a fee (determined by the State Co-ordinator by notice under the section) relating to their quarantine or isolation at a place in South Australia.

A notice under the section can provide that it has effect from a date earlier than its publication. Delegation to an Assistant State Co-ordinator is provided for.

6—Amendment of section 28—Failure to comply with directions

(1) A person must not, without reasonable excuse, refuse or fail to comply with a requirement or direction of the State Co-ordinator or of an authorised officer given in accordance with this Act during a declared identified major incident, major emergency or disaster.

Maximum penalty: (a) if the offender is a body corporate—$75 000; (b) if the offender is a natural person—$20 000 or imprisonment for 2 years.

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