Legislative Council: Thursday, May 05, 2022



South Australian Public Health (COVID-19) Amendment Bill

Introduction and First Reading

Received from the House of Assembly and read a first time.

Second Reading

The Hon. K.J. MAHER (Attorney-General, Minister for Aboriginal Affairs, Minister for Industrial Relations and Public Sector) (16:23): I move:

That this bill be now read a second time.

I seek leave to have the second reading explanation and explanation of clauses inserted in Hansard without my reading them.

Leave granted.

The Bill before the House today seeks to amend the South Australian Public Health Act 2011 to maintain important measures to manage ongoing COVID-19 transmission in the South Australian community.

The major emergency declaration under the Emergency Management Act 2004 has been in place since 22 March 2020, by far the longest emergency declaration in the state's history. The major emergency has been extended via the Cabinet and the Governor 28 times since then.

The current 28 day extension of the declaration ceases on 28 May 2022. The Government has indicated its desire to not have further extensions of the declaration beyond 30 June 2022. This bill with the support of the Parliament will allow for the expiry of the major emergency by ensuring that key protections can stay in place.

Following the expiry of the declaration it is important to ensure continuity of some baseline measures to help manage the pandemic and protect the most vulnerable members of our community.

With COVID-19 transmission continuing in South Australia, there remains a need to maintain some targeted measures to monitor the incidence and prevalence of the disease and mitigate transmission.

Isolation requirements for cases will be essential into the winter months to limit the transmission of COVID-19 in the South Australian community and reduce the risk of overwhelming the health care system.

Infection prevention and control measures, including mask wearing and staff vaccination requirements, will still be important in high-risk settings such as residential aged care, disability, and healthcare facilities.

The objects of the South Australian Public Health Act, 2011 are to protect individuals and communities from risks to public health. While it effectively does so for the most part, there are also limitations in that the current provisions only provide the means to effectively deal with individual cases of disease. This has served us well prior to a global pandemic, but will not provide the capacity to practically manage COVID-19 at the scale required, where we have seen and will continue to see thousands of cases in a day for the foreseeable future. This has led to the use of the Public Health Act having limited applicability during the course of the pandemic.

The Public Health (COVID-19) Amendment Bill 2022 has been developed to address the current limitations of the Act to deal with COVID-19 as well as provide for the ability to transition a limited number of current requirements made under the Emergency Management Act, 2004 to sustain their operation once the major emergency declaration ceases.

The Bill ensures that oversight of the issuing of directions requiring isolation of cases or any quarantine or other mitigation measures for close contacts is by the elected government, through the Governor.

The Government has announced its policy of utilising the Emergency Management Council of Cabinet that includes key Ministers as well as the Chief Public Health Officer and State Coordinator.

The Bill will ensure that specific requirements for high-risk settings are retained to effectively protect more vulnerable members of the community, including mandatory vaccination, contact tracing, mask wearing and other infection control measures. This includes areas such as hospitals, health care, aged care and disability.

To highlight the key features of the Bill, it establishes a new Part, 11A that:

Establishes the power for the Governor, by notice in the Gazette, to issue directions imposing requirements including isolation and quarantine on people – this is only for people who have been infected with COVID-19 or are close contacts. The provisions have been drafted so that these requirements on close contacts and people positive with COVID-19 can have appropriate application and can include the necessary requirements to be effective.

Provides the necessary powers for authorised officers to enforce the requirements of any direction made or transitioned under the new Part.

Allows for the expiry of a direction or a specific provision of a direction which must be no later than six months after the commencement of the part. This ensures the new Part's time limited application. Importantly if these requirements are needed beyond six months the Government will need to return to the Parliament to consider this again.

Disapplies provisions of the Act relating to specific principles (s.14[6], [7] and [9]) and Magistrates Court appeals s.90 (3, 4 and 5) where a public health emergency would need to be declared under the Act. This ensures that should a public health emergency be needed, only in relation to COVID-19, then these provisions of the Act would not impede effective public health measures or their enforcement at scale.

Establishes transitional provisions under Schedule 1 to transition any remaining directions under the EM Act to give them effect under the SAPH Act to sustain their requirements once the major emergency declaration ceases. The Department for Health and Wellbeing is currently reviewing the existing directions in force with a view to providing advice to the State Co-ordinator as to their ongoing maintenance at the time of transition. These will primarily relate to high risk sectors such as aged care, hospitals, health care and disability care.

Importantly this Bill is limited in scope and will not allow for the imposition of restrictions such as lockdowns, hospitality restrictions, general mask wearing provisions, except if there was the declaration of another emergency under either this Act or the Emergency Management Act. If there was the public health need for such significant restrictions again then the declaration of a new emergency would need to be considered at that time.

Health is the number one priority of the Malinauskas Government, and ensuring that we have important measures in place to respond to the transmission of COVID-19 throughout our community forms a key part of the Government's health plan.

This is combined with the need to end the declaration of a major emergency and ensure that those remaining targeted public health measures transfer to a new legal framework through this Parliament.

I commend the Bill to Members.

Explanation of Clauses

Part 1—Preliminary

1—Short title

These clauses are formal.


Part 2—Amendment of South Australian Public Health Act 2011

3—Insertion of Part 11A

This clause inserts a new Part in the South Australian Public Health Act 2011 as follows:

Part 11A—COVID-19 arrangements


This section contains definitions for the purposes of the Part and also provides that powers under the Part are in addition to, and do not limit, any other power under the South Australian Public Health Act 2011.


This section provides that the Governor may issue directions imposing requirements in relation to persons who have tested positive for COVID-19 and close contacts of such persons. Such directions could, for example, include directions requiring isolation or quarantine.

Directions of the Governor under this section may not come into operation, or continue to operate, if a declaration under section 23 of the Emergency Management Act 2004 in respect of the outbreak of COVID 19 within South Australia is in force (but could operate concurrently with a declaration of a public health incident or public health emergency under Part 11).

90C—Enforcement of directions

This section provides for the enforcement of directions issued under this Part and, for that purpose, empowers emergency officers to exercise any power referred to in section 25(2) of the Emergency Management Act 2004.

It will be an offence to, without reasonable excuse, refuse or fail to comply with a direction issued under this Part or a direction or requirement of an emergency officer given for the purposes of this Part. The maximum penalty for the offence for an individual will be $20,000 or imprisonment for 2 years and for a body corporate $75,000 and expiation fees for the offence will be $1,000 and $5,000 respectively.

It will also be an offence to hinder or obstruct operations carried out under, or for the purposes of, this Part. The maximum penalty for the offence will be $10,000.

This section also provides for criminal liability for directors and managers of bodies corporate guilty of an offence against the section. Each director and the manager of such a body corporate will be guilty of an offence and liable to the same penalty for the principal offence when committed by an individual unless they prove that they could not by the exercise of due diligence have prevented the commission of the offence.

This section also provides that an emergency officer may require a person who the officer reasonably suspects has committed, is committing or is about to commit, an offence against this Part to state the person's full name and usual place of residence and to produce evidence of the person's identity. A failure to immediately comply with such a requirement will be an offence with a maximum penalty of $5,000.

90D—Expiry of directions etc

This section provides that the Minister—

(a) may, by notice in the Gazette, fix a day or days, on which a direction under section 90B, or specified provisions of such a direction, will expire; and

(b) must, by notice in the Gazette, fix a day on which section 90B and all directions under that section will expire.

The day fixed by the Minister for the purposes of paragraph (b) above, to expire section 90B and all directions under that section, must be not later than 6 months after the day on which this section came into operation.

90E—Modifications of Act

This section provides that, if a public health incident or public health emergency is declared under Part 11 of the South Australian Public Health Act 2011 in respect of COVID-19, the following provisions of that Act do not apply to a direction given in relation to that emergency:

(a) section 14(6), (7) and (9);

(b) section 90(3), (4) and (5).

Schedule 1—Transitional provisions


This clause contains definitions for the purposes of the Schedule.

2—Continuation of directions

This clause provides that, on the cessation of the last relevant emergency declaration made under section 23 of the Emergency Management Act 2004 in force immediately before the commencement of this Schedule, a direction in force under section 25 of that Act continues in force as a direction under section 90B of the South Australian Public Health Act 2011 (as inserted by this Act).

This clause further provides that any approval or exemption granted under a direction continued in force under this clause also continues in force as if it had been granted under the direction as continued.

3—Emergency officers

This clause provides that a person who was an authorised officer under section 17 of the Emergency Management Act 2004 immediately before the cessation of the last relevant emergency declaration made under section 23 of that Act will, on that cessation, be taken to be appointed as an emergency officer under the South Australian Public Health Act 2011.

Debate adjourned on motion of Hon. N.J. Centofanti.

At 16:24 the council adjourned until Tuesday 17 May 2022 at 14:15.