As of 28 March 2020, new laws have been enacted which severely limit our ability to move freely in the community. These laws are legally binding and carry hefty penalties for breaches. Earlier this week I posted a blog about the legal authority to make these laws. You can read that blog here: http://www.stanleylaw.com.au/new-laws-during-coronavirus-pandemic/
There are now a series of lawful Directions restricting social gatherings, entry into aged care facilities, business operations and self-isolation and quarantine.
The main prohibitions in this Direction are:
- gatherings of more than 10 people
- gatherings of less than 10 people where there is noncompliance with density requirements (one person per 4 square metres)
- Owning or operating a place that allows a “prohibited gathering”
- Attending prohibited gatherings
Interestingly, this also provides that a person must comply with a Direction by a sheriff’s officer in a courtroom regarding density requirements and social distancing. I will be watching to see how this one pans out, given there are very few Magistrates Court courtrooms of sufficient size to accommodate all the essential personnel.
You can read the full Direction in all it’s legally complex glory here: https://www.police.sa.gov.au/__data/assets/pdf_file/0004/880438/Emergency-Management-GatheringsCOVID-19-Direction-2020_FINAL.pdf
Aged Care Facilities
This one reads in a very convoluted manner. The basic premise is that people cannot enter the facilities. This Direction then provides several exemptions,. The main exemptions are:
- employees, health care providers and goods and services providers, law enforcement, prospective residents, care and support visits (with very strict requirements), and end of life support
- the above cannot attend if they are under quarantine requirements
- from 1 May 2020, the above cannot attend if they have not had the influenza vaccination
- importantly, a resident who leaves the facility for a non medical purpose cannot return.
You will need to rely on the guidance of the owners/operators of the aged care facilities. I expect they will have been fully briefed on their legal obligations as to who can enter the facilities, and under what circumstances.
You can read the full Direction here: https://www.police.sa.gov.au/__data/assets/pdf_file/0006/880440/Emergency-Management-Residential-Aged-Care-Facilities-COVID-19-Direction-2020_FINAL.pdf
This is a new direction issued on 30 March 2020. The big amendment is that wineries now cannot provide takeaway meals or wine tasting. Wineries can still deliver wine and “specialty grocery items” but they must be delivered to the purchaser. They cannot be collected at the winery.
Most businesses affected by this Direction will already know and will have closed or restricted their business. This is a very lengthy Direction, so you should read it in its entirety. The Direction sets out what businesses and work must close, and then grants exemptions in certain circumstances. I will just summarise the main points:
- “defined premises” must close. Defined premises are set out in Clause 3(1)
- wineries are now included as “defined premises” and must close. This is now restricted to wineries in the Barossa Valley?. It includes all wineries in South Australia?.
- People cannot engage in “defined work”, which is also set out in Clause 3(1)
There are several exemptions, contained in Clause 5. Some of these exemptions are:
- shopping where goods are taken away (ie, retail stores)
- takeaway food and drink
- accommodation services
- funerals and weddings (with a number of restrictions)
- sports and recreation, provided there are no more than 10 people present
- foodbank/homeless services etc.
If the business or work can operate under one of the exemptions, the social distancing requirement of 1.5 metres applies.
Here is the full direction, amended on 30 March 2020: https://www.police.sa.gov.au/__data/assets/pdf_file/0009/881775/Signed-Direction-Non-Essential-Business-and-other-activities-no-2-COVID-19-Direction-2020.pdf?fbclid=IwAR2ta2v9KkrNhNDgdv4zHv8LtLqBe3lEOho5m7hZAartyVMc-kJicWUhluE
Quarantine and Self Isolation
These are two distinct Directions but have similar requirements. The main points are:
- If you return from overseas, you are required to be in quarantine for 14 days. In fact, the Federal Government has arranged for quarantine in hotels IN THE INCOMING CITY. This means that if you are a South Australian resident and land in Victoria, you will be placed in quarantine in Victoria.
- If you have tested positive to COVID-19, you must immediately self-isolate until you have been cleared by a doctor. You must segregate from anyone who does not live at the same premises. You cannot leave the premises except for medical care or in an emergency. You must take “reasonable steps” to ensure that no unauthorised people enter your premises. You must follow “reasonable directions” of your doctor.
- If you are considered, on reasonable grounds, to be a “close contact” then you must self-isolate as directed by an “authorised officer”
The quarantine Direction can be found here: https://www.police.sa.gov.au/__data/assets/pdf_file/0011/880436/Emergency-Management-Continuation-of-Overseas-Travel-Self-Quarantine-COVID-19-Direction-2020_FINAL.pdf
The self-isolation Direction can be found here: https://www.police.sa.gov.au/__data/assets/pdf_file/0003/880437/Emergency-Management-COVID-19Isolation-Following-Diagnosis-or-Close-Contact-Direction-2020_FINAL.pdf
I expect there will be zero tolerance or discretion with breaches of quarantine and self-isolation Directions. If you are arrested for breaching such a Direction, especially if you have tested positive to COVID-19, you can expect that you will be forcibly detained until you no longer test positive. The Emergency Management Act gives a power to “remove to such place as he or she thinks fit any person who obstructs or threatens to obstruct response or recovery operations”. Arguably, this could include placing a person in forced quarantine or isolation.
Lawfulness of Directions
These are not laws, but Directions. The offence lies in failing to comply with a Direction. The penalty is a fine of up to $20,000 for an individual and $75,000 for a body corporate. Failure to comply with a Direction does not attract a term of imprisonment. However, some breaches could amount to crimes. For example, a person who intentionally or recklessly places another person at risk, or threatens to place a person at risk, could be charged with a criminal offence.
For a person to be charged with breaching a Direction, prosecution would have to prove that you KNOW that there is a Direction and that you have deliberately failed to comply. It would be a defence if you did not know that a Direction existed or that you did not know you were breaching it. For example, if you are in a room, complying with the number requirements and someone else enters the room without your knowledge and therefore breaches the number restrictions, that would be a defence. In my view, it would be very difficult to defend a quarantine or self-isolation Direction, because everyone entering Australia now is required to sign an acknowledgement of receipt of that Direction. Everyone required to self-isolate will be contacted by an “authorised officer” advising of the legal requirement to self-isolate.
I have concerns about the very wide scope of some of these powers, which really are incredibly invasive. However, my view is that, given the enormous risk to our public health, the Directions announced in South Australia, are reasonable. I hope that they are reasonably enforced and that individual “authorised officers” do not take advantage of their incredible power and use that power for ulterior purposes.
I have no doubt that criminal lawyers will be an “essential service” and Stanley Law will be here throughout this crisis. I will have my phone on in case you need urgent legal advice. I’ve got your back, but by crikey, I hope I don’t get woken up at 3am because you are about to be arrested because you decided to have a house party.
I’ve always said that it is not a crime to be a wanker. In this climate, I’m not so sure.