COVID—19— Understanding the Regulatory Response and the Related Role of Local Government

COVID—19— Understanding the Regulatory Response and the Related Role of Local Government

30 March 2020

On 18 March 2020, ‘the outbreak of COVID-19 in South Australia’ was declared a ‘public health emergency’ in SA, pursuant to section 87 of the South Australian Public Health Act 2011 (“the SAPH Act”).

Thereafter, the increasing number of COVID-19 cases, together with the nationally-agreed pandemic control measures saw the outbreak declared as a ‘Major Emergency’ under section 23(1) of the Emergency Management Act 2004 (“the EM Act”) on 22 March 2020.

Following these declarations, regulatory controls concerning social distancing and public gatherings have been introduced and, subsequently, tightened, by a series of directions made by the State Co-ordinator for South Australia under the EM Act.

All such directions made by the State Coordinator are mandatory requirements. A failure to abide by them is an offence, enforceable by persons appointed as authorised officers under the Act (which includes SAPOL officers). From Saturday, 28 March 2020, an expiation fee of $1,000 applies to natural persons and of $5,000 to body corporates for a breach of the mandatory requirements.

The legal response to the pandemic remains fluid and is rapidly changing as tighter controls are, progressively, announced.

On Friday evening, 27 March 2020, the State Coordinator made the Emergency Management (Gatherings) COVID-19 Direction 2020 (“the Gathering Direction”), prohibiting (with some exceptions) persons from organising or attending gatherings of more than 10 persons or, a gathering of 10 or less persons that does not comply with the one person per 4 square metre rule.

As a result of the Federal Government’s announcement last night (Sunday, 29 March 2020) that:

  • public and private gatherings will be limited to 2 persons only (with some exceptions); and
  • public playgrounds, outside gyms and skateparks must be closed,

we are expecting a further direction to be made by the State Coordinator today, Monday, 30 March 2020, in order to give effect to the recommendations of the Federal Government.

It is critical, therefore, that councils monitor the directions made by the State Coordinator both in respect of performing their duties and functions under section 37(1)(h) of the SAPH Act but, also, as the owner and occupier of public spaces and other areas subject to strict controls around public access. The current directions of the State Coordinator, including the Gathering Direction, are available here.

Having received numerous enquiries from councils for advice about their role in implementing and enforcing directions of the State Coordinator under the EM Act, we confirm that, presently, neither councils or council-appointed authorised persons have the power to enforce offences arising from a failure to comply with the State Coordinator’s directions under the EM Act.

However, councils and their environmental health officers do have an important role to play in the overall containment of COVID-19, including as the local public health authority for their area under the SAPH Act, as well as in their capacity as the owner and occupier of public spaces and, generally, under WHS considerations.

To this end, the critical role of councils in connection with the COVID-19 response includes:

  • managing operations and their own land and facilities, including by implementing necessary measures to comply with the Gathering Direction and other directions made under the EM Act.

Note that where steps are taken to close council facilities or to otherwise restrict public access, the ‘closed land’ provisions that are usually contained in Local Government land by-laws and, where they do, may assist in the enforcement of such decisions (if necessary);

  • educating the public, including local businesses, regarding the operation of the directions and the actions required to comply with them; and
  • taking action to address risks to public health at a local level. Such risks may arise, for example, where a business is not complying with current directions under the Act and can then be addressed by councils through the issue of a notice under section 92(1)(b) of the SAPH Act.

We are aware that some councils are redeploying officers into newly-created positions for the purposes of carrying out the above functions. Such actions are sometimes vital to ensure that the response to the pandemic is sufficiently thorough. However, it also poses an opportunity to ensure that officers whose usual workloads have diminished, can be re-deployed and utilised during these uncertain times.

We are actively involved in supporting councils and their environmental health officers with the COVID-19 regulatory response and remain here to help. If you have any questions please contact:

COVID-19 Response – Training for Council Officers

In assisting councils with these matters, we have been providing a tailored 1-hour virtual training session for officers responsible for implementing their council’s COVID-19 responses. The training sessions, conducted by Cimon Burke, who has significant expertise in public health matters, includes practical, legal training on the following:

  • the objects and principles of the SAPH Act relevant to the COVID-19 response and impacts on councils;
  • notice-making powers under the SAPH Act, including who can issue a notice and why a notice may need to be issued as part of the COVID-19 response; and
  • directions made under the Emergency Management Act 2004, their legal impacts and their application and relevance to, councils.

The training is conducted on the virtual platform ‘Zoom’ and allows for interactivity. All attendees receive the usual strategic and practical advice that KJL seminars provide.

All participants are also provided with the template notice we have prepared under the SAPH Act, specifically-tailored to address COVID-19 responses.

If you are interested in a training session for your Council officers, contact Cimon Burke on cburke@kelledyjones.com.au or 08 8113 7105.

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